P. v. Atkins
Filed 12/4/13 P. v. Atkins CA2/5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
FLOYD ATKINS,
Defendant and Appellant.
B245835
(Los Angeles
County
Super. Ct.
No. BA386232)
APPEAL from
a judgment of the Superior Court
of
County, Clifford L. Klein, Judge. Affirmed.
Daniel R.
McCarthy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, and Mary Sanchez, Deputy Attorney
General, for Plaintiff and Respondent.
___________________________________
The jury found defendant and
appellant Floyd Atkins guilty of one count of discharging a laser at an
aircraft, in violation of Penal Code section 247.5.
247.5 violation.
The trial court sentenced defendant
to three years in county jail, two of which were suspended, to be served under
mandatory supervision pursuant to section 1170, subdivision (h)(5).
trial court erred in admitting prejudicial evidence of prior uncharged
crimes. He also challenges the trial
court’s disposition of his motion for review of the personnel records of four
police officers pursuant to Pitchess v.
Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We affirm the judgment.
FACTS
Prosecution
In the early morning hours of July 4, 2011, a Los Angeles Police Department helicopter,
identified as Air Unit 3, was struck by a green laser while flying over
downtown Los Angeles. Tactical Flight Officer Chris Mezich was able
to pinpoint the source of the laser beam to a house in the area of Paloma and
29th Streets. Officer Mezich had been
hit by a green laser originating in the same area twice within the previous two
weeks.
Soon after Air Unit 3 was struck by
the laser, Air Unit 18 relieved it from patrol. Air Unit 18 began flying southbound along the
110 freeway when it, too, was hit with a green laser originating in the same
area. Air Unit 18 radioed ground units
and reported the incident. Los Angeles Police
Officers Byron Hernandez and Jordan Ornelas responded, as did Officers Tornek
and Sanchez. The officers approached a
house at 1001 East 29th Street through an alley between Griffith Avenue and Paloma Street. They stopped in the alley, where Officers
Hernandez and Ornelas had an unobstructed view of the house. Officers Hernandez and Ornelas saw defendant
exit the rear door of the house, walk into the driveway, and point a green
laser at the sky with both hands. Officer Hernandez observed a green beam of
light emitting from defendant’s hands into the sky, just as Air Unit 18 advised
the officers it was being hit with the green laser again. Defendant went back into the house. About 30 seconds later he came back outside
and discharged the laser again. Another
person, later identified as Alvaro Jimenez, Jr., opened and closed the door for
defendant. The two men repeated their
actions three or four more times. Officer Hernandez heard laughter as this was
occurring.
While Officer Hernandez was
observing defendant and Jimenez, other officers surrounded the house. The officers summoned the occupants of the house
outside via bullhorn. Seven people exited,
including five males and two females. Defendant came out last. Jimenez’s father consented to a search of the
house. Officers located a black,
pen-style laser pointer which emitted a green laser beam and a flashlight that
had the ability to emit a red laser beam inside. The items were booked into evidence, and
defendant and Jimenez were arrested.
Evidence was presented that lasers
had been discharged at an aircraft from the same location on more than one
occasion within weeks before the charged incident.
Defense
Jimenez’s father testified that
defendant was a long-time friend of his son’s and stayed overnight with the
family regularly. He observed defendant
sleeping on the couch as he exited the house in compliance with the officers’
request, although he believed defendant was “pretending to be asleep.â€
Evidence
was presented that defendant was approximately 5’7†or 5’8†tall and that a
pickup truck of the same height was parked across from the back door of the
house on the night in question. It was
dark when the incident took place. There
was no light by the back door, and the closest light source was a dim yellow
light, about 100 feet away. When Officer
Hernandez was shown a picture taken by a defense investigator who tried to recreate
the view the officer would have had that night, Officer Hernandez testified
that he could not identify Jimenez in the picture. Officer Hernandez was better able to identify
Jimenez in person and he described the quality of the picture as poor, with
“glare.â€
I. Evidence
of an Uncharged Crime
The trial court allowed evidence of
uncharged incidents of discharging a laser at an aircraft to be admitted for
the sole purpose of establishing the location of the crime after defense
counsel “opened the door†on the issue of location. Officers Mezich and Brown testified Air Unit
3 was hit by a laser more than once in the two weeks before the incident at
issue took place. On June 27, 2011, officers were able to determine the laser originated
at 1001 East 29th Street. The location was searched, but no devices
capable of emitting a laser were discovered. Defendant contends the trial court committed
reversible error in admitting this evidence.
He argues the evidence was either impermissibly admitted as evidence
of “identity†pursuant to Evidence Code section 1100
or as otherwise impermissible rebuttal evidence. The Attorney General asserts the evidence was
properly admitted under Evidence Code section 352 as relevant to showing
that the officers were familiar with the location from which the beam was
emitted and did not require an exception to be admissible.
The trial court did not abuse its
discretion in admitting the evidence. “[E]vidence of other crimes is admissible if
it tends logically, naturally, and by reasonable inference to establish any
fact material to the people or overcome any matter
sought to be proved by the defense. (People
v. Peete (1946) 28 Cal.2d 306, 315.)â€
(People v. Moody (1976)
59 Cal.App.3d 357, 361.) Evidence of the
prior events was admissible to rebut any suggestion that Officer Mezich could
not discern the location from which the laser originated.
It is not reasonably probable that
the result would have been more favorable to defendant if the evidence had been
excluded. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019 [“[T]he
erroneous admission of prior misconduct evidence does not compel reversal
unless a result more favorable to the defendant would have been reasonably
probable if such evidence were excluded.â€]; see also People v. Allen (1986) 42 Cal.3d 1222, 1258 [evaluating error in
admitting evidence as harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836].)
Any error was harmless in the face
of the other overwhelming evidence of defendant’s guilt. Officers Hernandez and Ornelas observed defendant
deliberately aiming a laser at Air Unit 18 multiple times. The timing of the observed laser discharges
coincided directly with strikes reported by Air Unit 18. Both officers testified they had a clear and unobstructed
view of the house. Officer Hernandez
testified that he was “close enough to hear [defendant] laughing and
snickering†during the incident. Two
devices capable of emitting lasers were discovered on the premises, and one of
those devices was capable of emitting a green light—the color of the laser
beams that both Air Unit 18 and Officer Hernandez observed. In light of the volume of evidence against
defendant, we cannot conclude that exclusion of the evidence would have been
reasonably likely to change the outcome of this case.
II. Pitchess
Motion
A. Officers
Tornek and Sanchez
Defendant moved for review of the
personnel files of Officers Sanchez, Tornek, Hernandez, and Ornelas on the
basis that the officers lied when they identified him as the perpetrator of the
laser attack. The trial court denied
defendant’s Pitchess motion with
respect to Officers Sanchez and Tornek but granted the motion as to Officers
Hernandez and Ornelas. Defendant
contends the court abused its discretion in denying the motion as to Officers
Sanchez and Tornek. We disagree.
“We review the denial of a
discretion.†(People v. Moreno (2011) 192 Cal.App.4th 692, 701.) “The legal principles guiding our review of
of a peace officer’s confidential personnel records if those files contain
information that is potentially relevant to the defense. [Citations.] . . . [¶] To
initiate discovery, a defendant must file a motion seeking such records,
containing affidavits “showing good cause for the discovery or disclosure
sought, setting forth the materiality thereof to the subject matter involved in
the pending litigation . . . .†[Citation.] Good cause requires the defendant to establish
a logical link between a proposed defense and the pending charge and to
articulate how the discovery would support such a defense or how it would
impeach the officer’s version of events. [Citation.]
[¶] ‘The threshold for
establishing good cause is “relatively low.†[Citations] The proposed defense must have a “plausible
factual foundation†supported by the defendant’s counsel’s declaration and
other documents supporting the motion. [Citation.] A plausible scenario “is one that might or
could have occurred.†[Citation] The “defendant must also show how the
information sought could lead to or be evidence potentially admissible at trial
. . . .†[Citation.] . . .’ [Citation.]â€
(Sisson v. Superior Court (2013)
216 Cal.App.4th 24, 33-34.)
Here, the trial court found that
defendant failed to establish good cause as to Officers Sanchez and Tornek
because the motion only cursorily mentioned the two officers and did not
specifically assert that they identified defendant as the person wielding the
laser. Moreover, the evidence attached
to the motion concerned observations made by Officers Hernandez and Ornelas,
and only briefly referred to Officers Sanchez and Tornek. Prior to its ruling, the court questioned defense
counsel as to whether he wished to argue definitively that the officers
inculpated defendant. Defense counsel
averred that the two officers were named in the motion only in an abundance of
caution and declined to argue that the officers identified defendant.
We conclude the trial court did not
abuse its discretion in denying defendant’s Pitchess
motion as to Officers Tornek and Sanchez.
Defendant failed to establish good cause for the records to be reviewed
because he did not address the relevance of the officers’ records with
specificity in the motion and abandoned the opportunity to do so at the
hearing.
B. Officers
Hernandez and Ornelas
After granting defendant’s
and Ornelas, the trial court held an in camera hearing to review the officers’
personnel records. It found one item in
Officer Hernandez’s records relevant and ordered that it be disclosed. All other items in the personnel records of
the two officers were deemed undiscoverable.
Defendant requests this court
in camera hearing. In carrying out our
duty to conduct an independent review (People
v. Mooc (2001) 26 Cal.4th 1216, 1228-1232), we issued a record correction
order to have a complete record of proceedings. Having reviewed the corrected record and
conducted an independent review of the proceedings, we hold the trial court did
not abuse its discretion in ruling on the Pitchess
motion.
DISPOSITION
The
judgment is affirmed.
KRIEGLER,
J.
We concur:
TURNER,
P. J. MOSK,
J.
California Penal Code unless otherwise stated.
