P. v. Martinez-Berumen
Filed 9/11/12 P. v. Martinez-Berumen CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
RAFAEL MARTINEZ-BERUMEN,
Defendant and Appellant.
B232636
(Los Angeles
County
Super. Ct.
No. GA080357)
APPEAL
from a judgment of the Superior Court
of
County. Teri Schwartz, Judge. Affirmed.
Adrian
K. Panton, 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, Senior Assistant Attorney General, Steven E. Mercer and Sonya Roth,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
A jury convicted Rafael Martinez-Berumen (appellant) of
violation of Penal Code section 12020, subdivision (a)(4).
had suffered a prior “strike†conviction within the meaning of section 1170.12,
subdivisions (a) through (d) and 667, subdivisions (b) through (i). He was sentenced to four years in
prison. On appeal, he contends that the
trial court abused its discretion in ordering counsel to reopen closing statements
after commencement of jury deliberations in response to the jury’s
inquiries. He also contends that this
court must independently review the trial court’s in camera hearing on his
discovery. Finally, he contends that the
trial court incorrectly calculated presentence
modified to reflect the correct presentence custody credits but otherwise
affirm.
FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
On June 17, 2010, appellant was arrested
in the city of Duarte by Los
Angeles County Sheriff’s Detective Joseph Morales and his partner Deputy Cesar
Moreno.
Appellant
was charged in the information with possession of a firearm by a felon (§
12021, subd. (a)(1)) and possession of a concealed dirk or dagger. (§ 12020.)
At trial,
both deputies testified they were on routine patrol just past midnight when they saw appellant shirtless,
walking rapidly. Appellant appeared
distraught and was sweating profusely on a cold night. The officers asked appellant if anything was
wrong, and he answered “‘I’m out looking for my bitch. She’s a fucking night crawler.’†Morales and Moreno
then asked appellant if he had any weapons and identification with him, and
appellant stated he had both in his pocket and consented to a search of his
body by the officers. Moreno
found a fully extended knife in appellant’s pocket, which was fixed in an open
position.
Both
Morales and Moreno testified the knife
was not in plain view and Morales had to pull it out of appellant’s pocket when
they stopped appellant. They both used
the word “concealed.†Both deputies also
testified that appellant readily admitted he had a knife in his pocket.
Accordingly,
Morales and Moreno arrested
appellant for possession of a concealed dirk or dagger.
The
deputies both testified appellant told them that he had two young children at
home alone. They put him in their patrol
car and asked him where he lived. The
deputies then went to the address he gave and encountered a woman who said she
lived there with appellant and their two children. They searched the house and found a shotgun.
In defense,
appellant called his girlfriend as a witness.
She was detained by the deputies while walking home. They searched the house, which belonged to
her father, and recovered a shotgun which her father kept in a closet. She testified she was not living with
appellant at the time.
During
deliberations, the jury sent a note to the court asking for the definition of
“concealed,†specifically asking the court: “Please clarify the definition of
‘concealed’. If the defendant answers a
question of having a knife, is that still ‘concealed’ when he admittedly states
he has a knife in his pocket?â€
Out of the
presence of the jury, the trial court read the question to counsel. It stated it felt the answer to the jury’s
questions would be in the affirmative,
but gave counsel an opportunity to argue the matter further and answer
the jury’s question, or to argue, and if their argument did not answer the
question then the court would answer it.
Defense counsel responded: “As to court’s options that are being
presented to us, the defense would rather argue than to have the court answer
the question. But it would actually
prefer to have the court refer the jurors to the jury instruction regarding
concealment. But in lieu of that if
that’s not an alternative, then I would consent to – stipulate to
argument.†The prosecutor said he had no
problem with rearguing, but requested the court to further instruct the jury.
The
prosecution and defense counsel
proceeded to present their closing
re-arguments. The prosecution
explained the nature of the knife to the jury by stating, “If it was in plain
view, obvious to the naked eye from where the officer was at, probably you
wouldn’t have to ask that question: do you have any weapons? And [the officer] said he pulled the knife
out of his pocket. It was inside his
pocket.†The prosecution followed this
statement by advising the jury to give the terms “substantially†and
“concealed†a plain ordinary English definition found in Webster’s Dictionary
or on “Wikipedia.†The defense argued
the jurors should use their common experience to define “substantially
concealed.†Defense counsel stated: “And
in doing so, if you can’t come to a conclusion that you are convinced beyond a
reasonable doubt that [appellant] was concealing this and you have the evidence
that he readily disclosed it to the officers that he did have a knife on him .
. . then the law requires you to vote not guilty on this charge because every
element has to be proven to you beyond a reasonable doubt.â€
The court
then recessed for the noon hour. The jury indicated after the break it was
deadlocked on one count. The court
inquired of the jurors and eventually declared a mistrial on the weapon’s
possession count. The jury then
announced it had reached a guilty verdict on the charge of carrying a dirk and
dagger.
Appellant
filed a timely appeal.
DISCUSSION
1.
Arguments to Answer the Jury’s Inquiries on the Definition of “Concealedâ€
Appellant
contends the trial court abused its discretion in asking the prosecution and
defense to reopen closing arguments to answer the jury’s question while the
jury was deliberating. He argues that
the trial court interfered with the jury’s deliberative process and fact-finding
role, violating his federal and state constitutional rights to a jury trial and
due process.
Section
1138 provides: “After the jury have retired for deliberation, . . . if they
desire to be informed on any point of law arising in the case, they must
require the officer to conduct them into court.
Upon being brought into court, the information required must be given in
the presence of, or after notice to, the prosecuting attorney, and the
defendant or his counsel, or after they have been called.â€
“When a
jury asks a question after retiring for deliberation ‘[s]ection 1138 imposes
upon the court a duty to provide the jury with information the jury desires on
points of law.’ (People v. Smithey (1999) 20 Cal.4th 936, 985.) But ‘[t]his does not mean the court must
always elaborate on the standard instructions.
Where the original instructions are themselves full and complete, the
court has discretion under section 1138 to determine what additional explanations
are sufficient to satisfy the jury’s request for information.’ (People
v. Beardslee (1991) 53 Cal.3d 68, 97.)â€
(People v. Eid (2010) 187
Cal.App.4th 859, 881-882.) We review any
error under section 1138 for an abuse of discretion. (Ibid.
)
When the
jury submitted its question regarding the concealed nature of the weapon, the
court discussed the matter with counsel and provided them with a choice to have
the court answer the question or to argue the matter further, or to have a
combination of these choices. Defense
counsel stipulated that he would prefer the court to refer the jurors to the
jury instructions regarding concealment, but stated he would argue the matter
in the alternative. Both the prosecution
and defense were allowed to address the jury about the definition of
“concealed†and whether appellant’s admission to having a knife meant that the
weapon was concealed.
The record
shows that defense counsel consented to re-opening arguments to address the
jury’s questions, thus “[w]here, as here, appellant consents to the trial court’s
response to jury questions during deliberations, any claim of error with
respect thereto is waived.†(
360, 373, citing People v. Rodrigues
(1994) 8 Cal.4th 1060, 1193.)
In his
reply brief, appellant cites People v.
Montero (2007) 155 Cal.App.4th 1170, arguing that an identical situation
was presented when the trial court refused to give a clarifying instruction
about the definition and application of the element of “control†in a narcotics
possession charge. The court consulted
with counsel and determined that the jury was not requesting a clarification of
a jury instruction, but instead was requesting instruction on how they should
deliberate. (Id. at pp. 1178-1179.) The
court of appeal held the trial court did not abuse its discretion in directing
the jury to re-read a standard instruction because that instruction explained
the concept of control. Any detailed
response given by the trial court would have thrust the court into the jury’s
role of determining a crucial element of the crime. (Id.
at p. 1180.)
Here, the
court did not usurp the jury’s function in determining whether the knife was
concealed, and it allowed counsel to argue the particular facts of the
case. The prosecutor re-read a portion
of the argument describing the elements of the crime, and then referred to the
instruction on circumstantial evidence.
Further, in light of the court’s broad discretion over the way that it
may choose to answer the jury’s questions and its decision to allow both sides
to answer the questions, appellant was not prejudiced by the way the court
proceeded. “[W]hen faced with questions
from the jury, including that they have reached an impasse, ‘a court must do
more than figuratively throw up its hands and tell the jury it cannot
help. It must at least consider how it
can best aid the jury.’†(
1165, 1171, citing People v. Beardslee,
supra, 53 Cal.3d 68 at p. 97; italics omitted.) The court did not aid the jury in a way that coerced
them to return a verdict that would either favor or criminalize appellant. It did not give a specific definition of the
term “concealed†to the jurors, nor did it prejudice appellant by allowing only
the prosecution to argue in the re-opened closing arguments. The proceedings were neutral, giving both the
prosecution and defense counsel the opportunity to argue and satisfy the jury’s
inquiries. Thus, the court did not abuse
its discretion in re-opening arguments to clarify the jury’s question and
appellant’s constitutional rights were not violated.
The
Prior to
trial, appellant filed a motion pursuant to Pitchess
v. Superior Court (1974) 11 Cal.3d 531, requesting information from the
personnel files of the arresting officers relating to conduct that amounts to
moral turpitude or lack of honesty and credibility, “including but not limited
to allegations of false arrest, planting evidence, fabrication of police
reports, fabrication of probable cause, false testimony, perjury, writing false
police reports to cover up excessive force, complaints of excessive force,
false or misleading internal reports including medical and overtime, and other
acts of dishonesty and fabrication.†The
declaration submitted in support of the Pitchess
motion alleged that the deputies fabricated the events. Appellant’s justification for requesting the
information was that he denied making statements to the deputies concerning his
home address and the shotgun found there.
He also denied giving police consent to search his person. The court granted the motion insofar as there
were “any complaints regarding fabrication as it relates to consent to search
or probable cause to detain.â€
Appellant’s counsel further requested any complaints as to dishonesty or
fabrication. The court conducted an in-camera hearing. It found that
there was nothing discoverable in the records reviewed.
Appellant
contends the trial court erred because it searched only for complaints of
fabrication relating to “consent to search or probable cause to detain.†Appellant argues that this limitation was
overly restrictive and requests that we conduct an independent review of the
Evidence
Code section 1043 provides in pertinent part, “(a) In any case in which discovery
or disclosure is sought of peace or custodial officer personnel records . . .
the party seeking disclosure shall file a written motion . . . [which] . . .
shall include . . . [a]ffidavits showing good cause for the discovery or
disclosure sought, setting forth the materiality thereof to the subject matter
involved in the pending litigation and stating upon reasonable belief that the
governmental agency identified has the records or information from the records.
. . .â€
We review
the lower court’s ruling on a motion for access to law enforcement personnel
records under the abuse of discretion standard.
(People v. Cruz (2008) 44
Cal.4th 636, 670, citing Pitchess, supra,
11 Cal.3d 531, 535.) Further, “‘[i]n
criminal cases, the court retains wide discretion to protect against the
disclosure of information which might unduly hamper the prosecution or violate
some other legitimate governmental interest.’â€
(People v. Cruz,
The party
requesting the information must first make a showing that the information is
material to his case. (§ 1043;
49 Cal.3d 74, 83.) Next the party must
state upon reasonable belief that the governmental agency actually has the
records. Once this threshold showing of
good cause is met, the court must review the documents in camera to determine
its relevance.
In
Cal.4th 1011, the court ruled that the requirements of in-chambers review of
officer records and exclusion of information that is irrelevant to the pending
charges enable the trial court to identify which types of officer misconduct
information will support the defenses proposed to the pending charges. “[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. This court has long required that the
information sought must be described with some specificity to ensure that the
defendant’s request is not so broad as to garner ‘“all information which has
been obtained by the People in their investigation of the crimeâ€â€™ but is limited
to instances of officer misconduct related to the misconduct asserted by the
defendant.†(Id. at p. 1021, citing Pitchess,
supra, 11 Cal.3d at p. 537.) The
court gave an example where prior complaints of excessive force by arresting
officers become “irrelevant†after charge of resisting arrest was dropped and
remaining charge was irrelevant to the inquiry.
(Warrick v. Superior Court, supra,
35 Cal.4th at p. 1021.)
In
410, the court held a defendant must demonstrate prejudice from the denial of
discovery. A defendant would not be
prejudiced when the police files requested would result in no discoverable
information related to that which was presented at trial. (Id. at
pp. 418-419.)
Here, the
court searched only for complaints of fabrication relating to “consent to
search or probable cause to detain.â€
Appellant’s request for discovery of false testimony, perjury, excessive
force, writing false police reports, false or misleading internal reports, or
other acts of dishonesty and fabrication was far beyond the scope of the case
at hand. His only justification for
requesting such a broad amount of information was that his version and his
girlfriend’s version of events was more credible than the officers’ version. There was nothing else which would support
his claim that the officers had lied or fabricated their report. Moreover, no other conduct by the officers
was involved in this case other than detaining appellant and asking him for
consent to search. Appellant did not
show that such a broad range of information was material to this case. The court’s decision to limit the type of
complaints reviewed was well within the bounds of its discretion.
Furthermore,
we have independently reviewed the sealed proceedings and have determined that
no information of the nature being sought through the discovery motion was
found in the personnel files. The court
thoroughly discussed on the record each of the complaints filed against the
officer and found no discoverable material to disclose to the defense. There is no basis to disturb the trial
court’s Pitchess ruling. (People
v. Ochoa (2011) 191 Cal.App.4th 664, 674-675.)
3.
Appellant
contends that he was awarded 261 days instead of 271 days in presentence
custody credits because the record shows he was arrested on June 17, 2010 and
sentenced on March 14, 2011. The record
reflects that defense counsel incorrectly represented to the court that this
period was 261 days instead of 271 days.
The court calculated the total credit as 261 actual days plus 130 days
conduct credit, and appellant was awarded 391 days total credit.
For
purposes of these calculations, we include the date of the arrest (
1115, 1124) and the date of sentencing (People
v. Smith (1989) 211 Cal.App.3d 523, 525-526). The People concede that appellant is correct
that he spent 271 actual days in custody.
At the time
appellant committed the offense, the applicable custody credit statute provided
that for each four-day period of confinement, a prisoner is entitled to have
two days deducted unless the prisoner has refused to satisfactorily perform
labor or has not satisfactorily complied with the reasonable rules and
regulations of the facility. (Former §
4019, subds. (b)(1), (c)(1) as amended by Stats. 2009, ch. 28 § 50 (Sen. Bill
No. 18).)
However,
subdivision (b)(2) of former section 4019 provided that if the prisoner “has a
prior conviction for a serious felony, as defined in section 1192.7 or a
violent felony, as defined in section 667.5, for each six-day period in which
the prisoner is confined in or committed to a facility as specified in this
section, one day shall be deducted from his or her period of confinement unless
it appears by the record that the prisoner has not satisfactorily performed
labor as assigned by the sheriff, chief of police, or superintendent of an
industrial farm or road camp.†Likewise,
subdivision (c)(2) provides that with a prior conviction for a serious or
violent felony, for each six-day period in which a prisoner is confined, “one
day shall be deducted unless he has not satisfactorily complied with the
reasonable rules and regulations established by the sheriff, chief of police,
or superintendent of an industrial farm or road camp.†(Former § 4019, subds. (b)(2), (c)(2).)
Subdivision
(f) provides that “if all days are earned under this section, a term of four
days will be deemed to have been served for every two days spent in actual
custody, except that a term of six days shall be deemed to have been served for
every four days spent in actual custody for persons described in paragraph (2)
of subdivision (b) or (c).†(Former §
4019, subd. (f).)
Appellant
was found to have suffered a prior conviction for manslaughter under section
192. Voluntary manslaughter is defined
as a serious felony in section 1192.7, subdivision (c)(1) and as a violent
felony in section 667.5.
Under this
formula, we divide by 4 the actual presentence days in custody (271),
discounting any remainder, and then take that quotient (67) and multiply by 2
to calculate the number of conduct/work credits (134). That number (134) is added to the actual days
in custody (271) to arrive at the total number of credits, 405. (See People
v. Culp (2002) 100 Cal.App.4th 1278, 1283.)
Accordingly,
we order that the judgment be modified to reflect 405 days of presentence
custody credit.
DISPOSITION
The clerk
of the superior court is directed to amend the abstract of judgment to reflect
that appellant is entitled to 271 days of actual custody credit, plus 134 days
of conduct credit, for a total of 405 days of presentence custody credit and to
forward the amended abstract to the Department
of Corrections and Rehabilitation.
The judgment is affirmed as modified.
We concur:
PERLUSS, P. J. JACKSON,
J.
name="_ftn1" title="">
[1] All
further undesignated statutory references shall be to the Penal Code.
[2] This
statute was in effect for the eight-month period from January 25, 2010 to
September 27, 2010, and was applicable only to crimes committed during those
dates. (Payton v. Superior Court (2012) 202 Cal.App.4th 1187, 1190; Stats.
2010, ch. 426 (Sen. Bill No. 76) § 2,
eff. Sept. 28, 2010.)
