Opinion
E070978
09-05-2019
THE PEOPLE, Plaintiff and Respondent, v. VERONICA SUZANNE ORTEGA, Defendant and Appellant.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Kristine A. Gutierrez, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAF1701263) OPINION APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed in part; reversed in part with directions. Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Kristine A. Gutierrez, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Veronica Suzanne Ortega, was convicted by a jury of one count of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) She was sentenced to three years (doubled for a strike prior) and an additional five years for a serious felony prior, for a total of 11 years in state prison.
Unless otherwise noted, all undesignated statutory references are to the Penal Code.
Defendant contends that the trial court erred in denying her pretrial motion to dismiss on the grounds that the partial loss of surveillance video clips violated her due process rights under California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood). She also contends the trial court erred in denying her motion to dismiss based upon the prosecution's failure to disclose information required by Brady v. Maryland (1963) 373 U.S. 83 (Brady) or, alternatively, abused its discretion in denying her motion for new trial based upon the discovery of this undisclosed information.
Finally, defendant challenges the trial court's application of custody credit limitations under section 2933.1 and requests the matter be remanded for resentencing to permit the trial court to exercise its discretion to strike her five-year enhancement pursuant to recent amendments made to sections 667 and 1385. We remand the matter for resentencing as well as recalculation of defendant's custody credits. In all other respects, we affirm the judgment.
See Senate Bill No. 1393 (2017-1018 Reg. Sess.) (Stats. 2018, ch. 1013, §§ 1, 2), effective January 1, 2019.
II. FACTS AND PROCEDURAL BACKGROUND
A. Facts and Charges
On November 17, 2017, around 2:00 a.m., police officers were dispatched to a residential address in response to a report of a female trespassing on private property. Upon arriving at the scene, an officer discovered defendant pinned to the ground by the reporting party, a male resident.
The resident reported that he was alerted by his private security surveillance system of movement on his property and, upon investigating, discovered defendant hiding on the east side of his property. He "shined" his flashlight on her. He then said, "You don't belong here," and asked her, "What are you doing here?" The resident reported that defendant did not respond and, after a couple of seconds, defendant jumped up and swung a knife at him, resulting in a struggle between the two. The resident played video surveillance clips for the officer to view, but the officer did not obtain copies of the video clips.
At the scene, the officer spoke with defendant after reading her Miranda rights. Defendant admitted having a knife in her possession, but denied trying to use the knife against the resident. Instead, defendant stated she was on the property attempting to hide from an abusive boyfriend, the resident came at her wielding a machete, and she was attempting to defend herself. The officer recovered a knife and a pair of gloves from the area where she initially found defendant and the resident, but did not find a machete. The officer proceeded to arrest defendant.
Miranda v. Arizona (1966) 384 U.S. 436.
The district attorney's office subsequently contacted the resident in an attempt to obtain copies of the surveillance video clips. However, the resident was only able to locate and preserve a portion of the clips from the evening of his encounter with defendant. Those clips depicted defendant entering the resident's property, hiding after triggering security lights, and a portion of the confrontation between the resident and defendant.
On April 9, 2018, an amended information charged defendant with one count of assault with a deadly weapon (§ 245, subd. (a)(1)), and alleged defendant had suffered a serious felony prior (§ 667, subd. (a)), a prison prior (§ 667.5, subd. (b)), and a strike prior (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). B. Defendant's Motion to Dismiss
Prior to trial, defendant moved to dismiss the information, alleging that the police failed to preserve portions of the resident's surveillance video clips in violation of her due process rights pursuant to Trombetta and Youngblood. Specifically, defendant alleged that the unpreserved video clips included images of (1) defendant allegedly pulling on door handles of cars parked in the resident's driveway, (2) the resident exiting his home to confront defendant, and (3) the east side of the property where the resident first confronted defendant. Defendant argued that those video clips might have depicted the resident holding a knife in support of defendant's claim of self-defense. The trial court conducted an evidentiary hearing at which the investigating officer was called to testify.
The officer agreed that her job was to investigate crimes and collect both inculpatory and exculpatory evidence. She acknowledged arriving at the scene to discover defendant on the ground underneath the male resident. The officer confirmed that the resident showed her his private surveillance video clips. She acknowledged that the footage she viewed included a clip depicting defendant in the resident's driveway, attempting to open car door handles, and looking inside his boat, as well as a second clip depicting the resident exiting his home prior to confronting defendant. The officer testified the clip depicted the resident with a flashlight in his hand—not a machete. She did not believe anything on that video clip was exculpatory evidence in favor of defendant. The officer was not aware if there was a surveillance camera on the east side of the resident's property, and she did not view any video clips depicting that portion of the resident's property.
The officer documented her observations in her police report that same day. However, she did not obtain a copy of the resident's surveillance video clips. The officer testified the resident had difficulty locating and playing the clips in her presence. The resident reported to the officer that the surveillance system was new, he did not know how to use it, but stated he would contact the people who sold it to him and attempt to get copies of the video clips to provide to the police. The officer testified she did not use her own camera to make a secondary video of the resident's video footage. Also, she did not call the station to send a technician out that night or subsequently send an investigator to attempt to retrieve the surveillance video clips. The officer testified that such requests were not typical, were not part of her training, and she was unaware of any technicians with those skills on hand to call.
At trial, the officer further disclosed that her camera was not fully functional and did not have the capability of recording at the time.
The trial court found the officer's testimony credible with respect to her observations of what was depicted on the surveillance video clips and explanation for not retrieving the video clips at the time of her investigation. The trial court denied the motion, finding defendant had not established bad faith and had not established that the unpreserved surveillance video clip evidence was exculpatory in nature. C. Trial and Sentencing
At trial, both the resident and investigating officer were allowed to testify regarding their observations of the unpreserved surveillance video clips. An audio recording of defendant's statement at the scene of the incident regarding her version of events was also played to the jury upon defendant's request and over the objection of the prosecutor. On April 24, 2018, a jury found defendant guilty on count 1.
On May 31, 2018, defendant again moved to dismiss, alleging that the prosecutor had failed to disclose information useful for her defense in violation of her due process rights under Brady. During the course of the trial, the resident expressed a concern to the prosecutor that someone was presently "casing" his home, to which the prosecutor responded by advising the resident to report any concerns to the police. Defendant claimed that the resident's statement was evidence of paranoia, which should have been disclosed under Brady. Alternatively, defendant also filed a motion for new trial, arguing that the prosecutor's disclosure of the resident's statement constituted discovery of new evidence. The trial court denied both motions, finding that it was not reasonably probable that the jury would reach a different result.
In a bifurcated proceeding, the trial court found true the serious felony and strike prior allegations against defendant. Defendant was then sentenced to three years on count 1 (doubled for the strike prior), and an additional five years for a serious felony prior, for a total of 11 years in state prison. Defendant timely appealed.
III. DISCUSSION
A. Substantial Evidence Supports the Trial Court's Denial of Defendant's Motion to Dismiss for Failure to Preserve Evidence.
Defendant contends the failure to preserve relevant video clips from the resident's surveillance system violated her due process rights under Trombetta and Youngblood, and the trial court erred when it denied her motion to dismiss on those grounds. We disagree.
1. Applicable Legal Principles
"The federal constitutional guarantee of due process imposes a duty on the state to preserve 'evidence that might be expected to play a significant role in the suspect's defense.'" (People v. Montes (2014) 58 Cal.4th 809, 837 (Montes).) Whether the loss of evidence rises to the level of a due process violation is governed by the principles set forth by the United States Supreme Court in Trombetta and Youngblood. (People v. Alvarez (2014) 229 Cal.App.4th 761, 771 (Alvarez).) Under Trombetta, law enforcement agencies must preserve evidence only if the evidence possess exculpatory value that was apparent before it was destroyed and if the evidence is of a type not obtainable by other reasonably available means. (People v. Velasco (2011) 194 Cal.App.4th 1258, 1262 (Velasco); Trombetta, supra, 467 U.S. at pp. 488-489.) As an alternative to establishing the apparent exculpatory value of the lost evidence, Youngblood provides that a defendant may show that "'potentially useful'" evidence was destroyed as a result of bad faith. (Velasco, supra, at p. 1262; see Youngblood, supra, 488 U.S. at p. 58.)
However, there are "no cases of precedential value which squarely hold that the prosecution's duty to preserve material evidence encompasses an initial duty to affirmatively collect or gather or seize potentially material evidence in the course of an investigation for defendant's use." (People v. Bradley (1984) 159 Cal.App.3d 399, 406.) "It is axiomatic that the constitutional due process guaranty is a bulwark against improper state action. '[T]he core purpose of procedural due process [is] ensuring that a citizen's reasonable reliance is not frustrated by arbitrary government action.' [Citation.] If the state took no action, due process is not a consideration, because there is no 'loss of evidence attributable to the Government.'" (Velasco, supra, 194 Cal.App.4th at p. 1263.) Thus, the California Supreme Court and Courts of Appeal have repeatedly recognized that "due process does not require the police to collect particular items of evidence." (Montes, supra, 58 Cal.4th at p. 837 [no duty to collect blood samples]; Velasco, supra, at p. 1263 [no duty to preserve prison clothing modified to conceal weapon]; People v. Mills (1985) 164 Cal.App.3d 652, 656 [no duty to collect breath samples]; People v. Kelley (1984) 158 Cal.App.3d 1085, 1101-1102 [no duty to tape-record confession].)
Here, surveillance video clips were shown to the investigating officer at the scene, but the officer took no action to obtain a copy of those clips. Thus, at the outset, this case appears to involve a failure to collect evidence rather than a failure to preserve evidence already within the possession of the police, and the due process considerations presented in Trombetta and Youngblood are not applicable. (Velasco, supra, 194 Cal.App.4th at p. 1263.)
Nevertheless, we are mindful of the fact that the California Supreme Court and United States Court of Appeals, Ninth Circuit, have at times suggested that there may be an appropriate case where the failure to collect evidence might warrant due process considerations. (Montes, supra, 58 Cal.4th at p. 838 ["we have suggested that cases may arise in which the failure to collect evidence could justify sanctions against the prosecution at trial"]; Miller v. Vasquez (1989) 868 F.2d 1116, 1119 [sanctions for bad faith failure to collect evidence].) While nothing in the record suggests that this is such a case, even assuming the duty to preserve evidence extends to the officer's failure to collect the surveillance video clips, we find no error.
2. Substantial Evidence Supports the Denial of Defendant's Motion to Dismiss
"We review the trial court's decision on a Trombetta/Youngblood motion under the substantial evidence standard." (Alvarez, supra, 229 Cal.App.4th at p. 774; see People v. Carter (2005) 36 Cal.4th 1215, 1246.) Our task "'is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value' in support of the court's decision." (Alvarez, supra, at p. 774.)
Here, defendant argues that the surveillance video clips had exculpatory value because they might have shown the resident wielding a machete while exiting his home, in support of defendant's self-defense argument. However, the investigating officer testified that the video clips depicted the resident exit his home, carrying a flashlight, and the trial court found this testimony credible. The officer's testimony constitutes substantial evidence in support of the trial court's determination that the video clips did not contain exculpatory evidence.
The People also argue that defendant failed to show the inability to obtain reasonably comparable evidence because the officer took notes and testified as to her observations. In reply, defendant contends there is "no law to support this assertion." Defendant is incorrect on this point. The California Supreme Court addressed this specific argument in People v. Thomas (2012) 54 Cal.4th 908, which involved the failure of police to tape-record the entirety of an interview conducted with the defendant in that case. (Id. at pp. 918-919, 928.) In rejecting the defendant's claim of a Trombetta violation, our Supreme Court explained: "[T]he absence of a tape recording of the entire interview did not deny defendant all opportunity 'to obtain comparable evidence by other reasonably available means'" because "[d]efendant was able to cross-examine [the interviewing detective] at trial, and defendant himself was available to testify regarding the interview if he chose to do so." (Thomas, supra, at p. 929.) The same reasoning would apply here.
Defendant also argues that the officer's failure to obtain a copy of the surveillance video clips constituted bad faith because she knew of inconsistencies between the resident's and defendant's versions of events. However, the officer testified the resident did not know how to operate his surveillance system, the police did not have a technician on-call for the purpose of traveling to crime scenes to retrieve copies of surveillance videos, and the resident informed the officer he would attempt to get assistance with making a copy of the video clips. Again, the officer's testimony constitutes substantial evidence in support of the trial court's determination that her actions did not rise to the level of bad faith.
Where substantial evidence supports the trial court's determination that the investigating officer did not act in bad faith and that the lost evidence did not have apparent exculpatory value, defendant has not shown a violation of her due process rights under Trombetta or Youngblood. We find no error and affirm the trial court's order in this regard. B. The Trial Court Did Not Err in Denying Defendant's Motion to Dismiss Under Brady
Defendant also challenges the trial court's denial of her motion to dismiss based upon her claim that the prosecution failed to disclose information in violation of her due process rights under Brady. Specifically, defendant contends that the resident's statement to the prosecutor that he "believed people were casing his house" at the time of the trial was favorable evidence that should have been disclosed because it showed the resident's general paranoia. We disagree.
"In Brady, the United States Supreme Court held 'that the suppression by the prosecution of evidence favorable to an accused upon request violates due process.'" (People v. Salazar (2005) 35 Cal.4th 1031, 1042.) "'There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.'" (People v. Jimenez (2019) 32 Cal.App.5th 409, 418 (Jimenez); see Salazar, supra, at p. 1043.) "On appeal, the defendant bears the burden to establish the components of a Brady violation. [Citation.] We independently review whether such a violation occurred but give 'great weight to any trial court findings of fact that are supported by substantial evidence.'" (Jimenez, supra, at p. 418, citing People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.)
Defendant here fails to meet her burden to show that the allegedly withheld evidence was "favorable" under Brady. Jimenez, supra, 32 Cal.App.5th 409 is instructive. In that case, the defendant was accused of assault with a deadly weapon on a peace officer, and the only witnesses who testified at trial were the involved officers. (Id. at pp. 412-415.) The defendant moved for a new trial under Brady, arguing that the prosecution failed to disclose a previous report prepared by one of the officers in an unrelated incident that identified the defendant as a gang member. (Jiminez, supra, at pp. 416-417.) In concluding that the report was not "favorable" evidence requiring disclosure under Brady, our colleagues in Division One noted that the report involved a different, uncharged and unrelated, incident without any indication it was false, dishonest, or embellished. The Jimenez court explained: "Given the collateral nature of the report and the absence of any plausible factual foundation for allegations of [the deputy's] bias or untruthfulness, we are unconvinced the report had impeachment value under Brady." (Jimenez, supra, at p. 420.)
The same reasoning applies here. Like the report in Jimenez, the resident's statement referred to a separate, collateral set of events. Just as the officer's gang identification in Jimenez would only be relevant if there were some plausible, factual basis to argue it was biased or untruthful, the resident's statement here would only be relevant if there were some plausible, factual basis from which defendant could argue it was unfounded. After all, the statement would have no impeachment value and would not be evidence of alleged paranoia if the resident's house were, in fact, being cased. Yet, defendant does not suggest any plausible, factual foundation from which she could have shown the resident's statement was unfounded and, therefore, evidence of paranoia. Standing alone, there was no basis for the prosecutor to conclude that the statement was indicative of paranoia such that it could be used as evidence in defendant's case.
Further, even assuming defendant could show the resident's statement was a product of paranoia, the statement standing alone has no exculpatory or impeachment value such that it would be considered "favorable" under Brady. A statement made five months after defendant's arrest would not be relevant to show the resident's state of mind at the time of his confrontation with defendant. Any connection is tenuous and entirely speculative. Absent more, the resident's statement was not "favorable" evidence under Brady, and we find no error in the trial court's denial of defendant's motion for new trial on this ground. C. There Is No Individual Error to Support a Claim of Cumulative Error
Defendant also asserts that reversal is warranted as the result of cumulative errors. "In theory, the aggregate prejudice from several different errors occurring at trial could require reversal even if no single error was prejudicial by itself." (In re Reno (2012) 55 Cal.4th 428, 483.) However, "[a] predicate to a claim of cumulative error is a finding of error. There can be no cumulative error if the challenged rulings were not erroneous." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Since we have found no error in the trial court's rulings with respect to defendant's due process challenges under Trombetta, Youngblood, or Brady, we also find no merit in the claim of cumulative error. D. The Trial Court Did Not Abuse Its Discretion in Denying a New Trial for Alleged Discovery of New Evidence
Defendant alternatively argues that the resident's statement that he believed someone was "casing" his home was new evidence, and the trial court abused its discretion in denying her a new trial on this ground. We disagree.
"'In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: "1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits."'" (People v. Howard (2010) 51 Cal.4th 15, 43; see § 1181; see also People v. Delgado (1993) 5 Cal.4th 312, 328.) The trial court's determination on a motion for new trial "'"'will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.'"'" (Howard, supra, at pp. 42-43.)
Defendant characterizes the resident's statement of belief that someone was "casing" his home as "new evidence" of "general paranoia." The record does not support either of these characterizations. Moreover, as we have explained ante, there is no clear impeachment value in the resident's statement even if it were shown to be the product of paranoia, as the resident's state of mind five months after the incident is not relevant to the resident's state of mind at the time of his confrontation with defendant.
"'[N]ewly discovered evidence of the prosecuting witness which is so closely related to evidence given by said witness that it might have been obtained on a cross-examination is not ground for a new trial.'" (People v. Loar (1958) 165 Cal.App.2d 765, 779.) Here, defense counsel questioned the resident about his feelings regarding potential threats to his home. Nothing in the record suggests that defense counsel was prevented from pursuing this line of questioning further to inquire as to the frequency with which the resident felt his home was threatened. Additionally, as explained ante, the evidence does not in itself suggest paranoia absent some other showing that the resident's belief was unfounded. --------
However, even if we were to assume that the statement constituted new evidence of the resident's general paranoia potentially useful for impeachment, the trial court's denial of a motion for new trial on this ground was not an abuse of discretion. "'[A] new trial on the ground of newly discovered evidence is not granted where the only value of the newly discovered testimony is as impeaching evidence' or to contradict a witness of the opposing party." (People v. Hall (2010) 187 Cal.App.4th 282, 299; see Jimenez, supra, 32 Cal.App.5th at p. 423.) Since defendant has not suggested the relevance of the resident's statement for any purpose other than impeachment, she has not met her burden to show that the trial court's decision to deny her request for a new trial amounts to a manifest or unmistakable abuse of its discretion. E. The Matter Should Be Remanded for Reconsideration of Sentencing Issues
Finally, defendant contends the trial court erred in applying the custody credit limitations of section 2933.1, and her sentencing should be remanded to permit the trial court to exercise its discretion to strike a five-year enhancement pursuant to recent amendments made to sections 667 and 1385. The People concede that the limitation on custody credits imposed by section 2933.1 do not apply to the offense for which defendant was convicted. The People further agree that the amendments to sections 667 and 1385 embodied in Senate Bill No. 1393, which permits a trial court to exercise discretion to dismiss or strike a five-year consecutive term imposed for prior serious felony convictions applies to defendant's case pursuant to People v. Garcia (2018) 28 Cal.App.5th 961, 971, because defendant's conviction is not yet final.
We agree and, therefore, remand the matter for resentencing under sections 667 and 1385 without expressing an opinion as to how the trial court should exercise its discretion. Upon remand, the trial court shall also recalculate defendant's custody credits.
IV. DISPOSITION
Defendant's sentence is vacated, and the matter is remanded to allow the trial court to exercise its discretion to determine whether to strike defendant's five-year enhancement under sections 667 and 1385, as well as to allow the trial court to recalculate any custody credits to which defendant may be entitled. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. McKINSTER
J.