P. v. Gilbert
Filed 12/13/13
P. v. Gilbert CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA MICHAEL
GILBERT,
Defendant and Appellant.
A136642
(Alameda County
Super. Ct. Nos. H49012 & H52066)
A
jury found defendant Joshua Michael Gilbert guilty of evading an officer. Defendant contends his conviction must be
reversed due to the trial court’s inadequate response to an asserted discovery
violation by the prosecution—failing to timely turn over to the defense a supplemental
police report recounting inculpatory statements defendant made to police
officers after his arrest. He maintains the
trial court prejudicially erred by failing to either exclude testimony about the
statements or, at a minimum, to instruct the jury to consider the prosecution’s
discovery violation in weighing that testimony.
We find the trial court’s error, if any, was harmless, and affirm the
judgment.
I. BACKGROUND
Defendant
was charged by information with one count of evading a police officer (Veh.
Code, § 2800.2, subd. (a); count one) and one count of unlawful driving or taking of a vehicle (Veh.
Code, § 10851, subd. (a); count two). The information also alleged a prior vehicle
theft conviction (Pen. Code,[1]
§ 666.5) and a prior separate prison term (§ 667.5). Defendant pleaded not guilty, and a jury trial
began on July 2, 2012. The court
dismissed the vehicle theft count on the prosecution’s motion.
On March 28, 2012, at approximately 2:30 a.m., Officer
Ryan Kiefer of the Livermore Police Department was on patrol on Nissen Drive in
Livermore. He saw a blue Volkswagen
Touareg driven by a White adult male pull out of the driveway of the Extended
Stay America Hotel (Extended Stay). Kiefer
was traveling southbound and the blue Touareg was traveling northbound on Nissen. As the Touareg approached him, Kiefer could
not see whether there were any passengers in the car. He noticed the Touareg did not have a front
license plate in violation of the Vehicle Code. Intending to stop the Touareg, Kiefer made a U-turn
in the hotel parking lot and followed it onto Interstate 580 where he saw the
vehicle traveling at 95 miles per hour in a 65-mile-per-hour speed limit zone,
and changing lanes without signaling several times. Kiefer continued to follow the vehicle after it
exited the freeway. The Touareg twice
made left turns against red lights and traveled at 50 miles per hour in a 40-mile-per-hour
speed limit zone. A chase ensued after
Kiefer activated his emergency lights and attempted to stop the Touareg. Kiefer was never closer than three car lengths
to the Touareg during the chase. The
pursuit lasted approximately six minutes and went 4.6 miles from where Kiefer
initially turned on his lights and siren. At the end of Scenic Road, a dead end, the
Touareg went through a barbed wire fence and across an open pasture, through a
second barbed wire fence, and then hit a pole.
Kiefer had been in contact with the dispatcher throughout the chase and
reported the crash the moment it happened.
Kiefer’s patrol car was approximately 50 yards away from
the crash site. He pulled up to the
Touareg and parked behind it. He did not
see anyone get out of the car after it stopped.
But because of the vehicles’ respective positions he could not see the
driver’s side until he exited the patrol car and approached it on foot. When he did, he saw the driver’s door was open
and the car still running. He heard what
he believed to be the sound of a person jumping over a chain-link fence, a
pause, and then the same sound. When
Kiefer approached the Touareg, after waiting for another officer to arrive, he
found a woman, identified as Caitlin Affleck, in the passenger seat. In a recorded statement given to police at the
scene and played for the jury, Affleck identified defendant as the driver. She stated defendant was a friend, had called
her and picked her up earlier in the evening, and had driven her to the
Extended Stay parking lot where they spent about an hour talking. She told police defendant was driving her
home when he noticed Kiefer was following his car. He “started freaking out,” and attempted to
flee. She was “screaming at him to stop,”
and thought about jumping out of the vehicle, but was afraid of getting
hurt. She said defendant jumped over the
fence after the car stopped, and that was the last she saw of him. Officer Keith Pini testified Affleck
identified defendant as the driver in an in-field showup shortly after his
arrest.[2]
Inside the Touareg, Kiefer found a California license
plate that was not registered to the car, a New York license plate, and some
mail that did not have defendant’s name on it. A check of the car ownership showed defendant
was not the owner of the car.
The crash site was located in a construction yard owned by
Calco Fence Inc. at 715 Laughlin Road. The property was completely surrounded by a
chain-link fence and there was also another interior fence. A number of backup officers quickly arrived at
the crash site, and within eight minutes of the crash had established a visual perimeter
on all four sides of the property. Police
did not search or secure the adjacent residential areas. Approximately 45 minutes to an hour after the
crash police began a search of the area. In the inner fenced-in area officers found a
black hooded sweatshirt; though the ground was wet because it had been raining
earlier, the sweatshirt was dry. Approximately
two hours after the crash, a police dog located a subject laying or hiding
behind a partition and underneath a blanket in an abandoned building on the
property. Based on prior contacts,
Kiefer recognized the subject as defendant. Defendant was arrested and the search was
discontinued.
After his arrest, Officers Dufour and Grajeda transported
defendant to the hospital for medical treatment. Over defense objection, Officer Grajeda
testified that about 30 minutes after arriving at the hospital defendant spontaneously
asked Officer Dufour in Grajeda’s presence how Dufour knew he was the driver of
the stolen car. Defendant went on to
make comments to the effect that he was in trouble and asked whether there was
anything he could do to get the charges dropped. He told Dufour he knew the locations of drugs,
stolen property, and guns the police could recover.
The Touareg showed no signs of forced entry; the key was
in it and it was still running when police arrived. Officer Lindsay Dyer, a crime scene technician
with the Livermore Police Department, processed the scene for evidence. This included taking multiple photographs of
footprints left around the area, as well as making a casting of the footprint
left in the mud between the curb of Laughlin Road and the fence. She also took photos of the shoes defendant
was wearing when he was arrested, and testified the pattern and shape of the
soles were similar to that of the print she cast. Dyer’s photos showed footprints that did not
match the shoes defendant was wearing.
The defense called no witnesses. Defense
counsel argued in closing that there were three occupants in the vehicle,
defendant was not the driver, and Affleck had lied to police at the scene in
order to protect the third person who evaded the police search.
The
jury found defendant guilty of evading an officer, and he was sentenced to
three years in state prison.
II. DISCUSSION
Defendant
contends the trial court prejudicially erred in failing to find a violation of
the state discovery statute,[3]
and in failing to either exclude Officer Grajeda’s testimony regarding
defendant’s incriminating statements altogether, or instruct the jury with
CALCRIM No. 306.[4]
A. Relevant Facts
Officers Kiefer and Dufour each wrote police reports that
included defendant’s spontaneous question to Dufour, “[H]ow did you know I was
driving the [stolen car][]” However,
only one document—a supplemental report authored by Officer Dufour—recounted the
entirety of defendant’s statements to Dufour in the hospital, including his
comments about being in trouble, trying to get the charges dropped, and offering
to disclose the location of stolen items. The prosecution believed it had timely
produced both reports to the defense before trial. However, when the prosecution proposed after
the first day of trial testimony to elicit police testimony regarding all of
defendant’s incriminating statements to Dufour, defense counsel objected and
advised the court that she had no prior knowledge of any incriminating
statement by her client except his question about how police knew he was
driving the car. After checking her discovery
files, she asserted Officer Dufour’s supplemental report and the information
contained in it had never previously been disclosed to her. Counsel sought the exclusion of any testimony
regarding defendant’s statements to Dufour about being in trouble, trying to
get the charges dropped, or offering to disclose the location of stolen items.
After hearing extensive argument on the issue, the trial
court allowed Officer Grajeda to testify as to all of defendant’s
statements. The court offered to give
the defense a day or two to investigate and prepare for the new evidence, but
it declined to make any finding the prosecution failed to produce Dufour’s
supplemental report. In declining to find a discovery violation,
the court emphasized that neither the trial prosecutor nor defense counsel were
the original lawyers in the case and neither was involved in the actual
exchange of discovery. The court stated
it therefore had no factual basis for finding Officer Dufour’s report was not
turned over to the public defender’s office along with other police reports, or
for precluding use of the statements disclosed in it. The court stated it would view the matter
differently if both counsel had personally participated in the exchange of
discovery and could make representations about it based on personal knowledge. For its part, the defense declined the court’s
offer of extra time to investigate and prepare, stating extra time would not
remedy the prejudice resulting from the prosecution’s asserted discovery
violation. Without further elaboration,
defense counsel stated the prejudice consisted of the fact that the statement
might have affected the decision to go to trial, might have led to a defense
motion, and would have caused her to select a different jury.
As an initial matter, we note defendant did
not propose the use of CALCRIM No. 306 in the trial court. The only sanction defendant’s trial counsel
proposed was exclusion of the subject testimony. Exclusion would not have been an appropriate
remedy given the absence of any evidence Dufour’s statement was deliberately
withheld from the defense for tactical advantage.[6] (See People
v. Reyes (1974) 12 Cal.3d 486, 502 [where not willful, the failure to
disclose should not be punished by the suppression of evidence, but by giving
the offended party a proper opportunity to meet the new evidence, such as by a
continuance].) While defendant states
the trial court “never reached” the issue of sanctions due to its erroneous failure
to find any discovery violation had occurred, there was in fact extended
argument on the defense’s claim of prejudice from the late discovery, and ample
opportunity for defendant’s trial counsel to propose an instruction under
CALCRIM No. 306. We see no basis to
fault the trial court for failing to give an instruction the defense never
requested.
In
any event, reversal for judicial error
under California law requires a
showing of prejudice. (
520.) “A trial court’s erroneous ruling
is not grounds for reversal unless the defendant suffers actual prejudice
therefrom. [Citations.] Prejudicial error must be affirmatively
demonstrated and will not be presumed.” (
282, 291; see also People v. Maury (2003)
30 Cal.4th 342, 389; People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson);
421, 429.) A violation of a state
discovery statute generally “is subject to the harmless-error standard set forth
in [Watson, at page] 836.” (People
v. Verdugo (2010) 50 Cal.4th 263, 280.)
Under Watson,
a judgment will be affirmed unless it is reasonably probable that, absent the
alleged error, a result more favorable to the defendant would have been
reached. (Id. at p. 836.) Defendant argues the more stringent standard
set forth in Chapman v. California (1967)
386 U.S. 18 (Chapman) should apply
because the failure to disclose “implicated defendant’s federal due process
rights.” (People v. Gonzalez (2006) 38 Cal.4th 932, 961.) Under Chapman,
a judgment will be affirmed if the error was harmless beyond a reasonable
doubt. (Id. at p. 24)
We
find the trial court’s error, if any, was harmless under both the
evidence of defendant’s guilt was overwhelming without regard to the
inculpatory statements in issue. There
was powerful direct evidence of guilt. Defendant
was identified as the driver by Caitlin Affleck, the passenger who sat next to the
driver during the entire incident. She provided
a statement recorded moments after the pursuit ended, gave clear and coherent
answers about what had occurred, and identified defendant unequivocally as the
driver. Affleck was still in shock from
the events at the time of the interview, making it unlikely she would have had
time or opportunity to concoct a false story.
There was testimony Affleck again identified defendant as the driver in
an in-field showup shortly after his arrest.
Given the clarity of her answers during the taped interview, no
reasonable juror could have believed Affleck was telling the truth at trial
when she testified she was too drunk the night of the incident (less than three
months before trial) to remember how she came to be in the car, who was driving,
what led to the accident, or what she had told police when they arrived.
Numerous
circumstances corroborated Affleck’s original identification of defendant as
the driver, and negated the defense theory she was trying to protect some
unknown third person: (1) Kiefer pulled
up behind the Touareg seconds after it crashed, saw no one exit the car, heard
one person climbing over two chain-link fences, observed only the driver’s door
left open, and found Affleck by herself inside the car; (2) a shoe print
matching defendant’s shoe was found near the fence; (3) the crash and search
took place in the middle of the night in an isolated industrial yard enclosed
by two fences; (4) police quickly established a perimeter around the property,
searched it intensively for two hours using officers and a K9 unit, and found
no one other than defendant, who had no innocent reason to be on the property;
(5) as a probationer driving a stolen car, defendant would have had a strong motive
to evade police; (6) defendant’s flight from the crash scene and efforts to conceal
himself from police showed a consciousness of guilt; and (7) defendant
acknowledged his guilt by spontaneously asking Dufour how the officer knew he
was the driver.
By
contrast, there was almost no evidence to support the defense theory of a third
person driving the vehicle. The
nonmatching footprint found by the crime scene technician near the crash site
was easily explained by the number of police and other emergency personnel who
arrived at the scene. The fact some
personal belongings were found in the back seat of the vehicle is also not
surprising since the vehicle was stolen. Based on the sum of the evidence before the
jury, there is no reasonable possibility that exclusion of the statements in
issue, or an instruction under CALCRIM No. 306, would have resulted in a
verdict more favorable to defendant.
DISPOSITION
The
judgment is affirmed.
_________________________
Margulies,
Acting P.J.
We concur:
_________________________
Banke, J.
_________________________
Sepulveda, J.*
[1] All further statutory
references are to the Penal Code.
[2] At trial, Ms. Affleck
stated she had been too intoxicated to remember who was driving the car, or
many other details of the night. After a hearing, the trial court found this
failure to remember inconsistent with Affleck’s recorded statement and admitted
the recording to impeach her prior testimony.
