Opinion
C084400
06-26-2018
THE PEOPLE, Plaintiff and Respondent, v. JOEL ALLEN SMOOT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE018353)
After he led police on a high-speed chase, a jury found defendant Joel Allen Smoot guilty of, inter alia, evading a peace officer with wanton disregard for safety. At trial, defendant maintained he was not the driver. The jury, however, heard excerpts of a jail call where defendant made numerous inculpatory statements, including, "I'm guilty."
On appeal, defendant contends the trial court erred in denying his trial counsel's request to exclude the jail recordings. He also contends the court erred in allowing a deputy sheriff to offer expert opinion testimony regarding the voice recognition software used to monitor inmate phone calls. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
When two officers in a marked squad car saw a black two-door Toyota leave a gas station, they ran a license plate check and found the registration five months expired. Both officers recognized defendant as the driver. They also saw a female with long hair in the passenger seat. The officers signaled the car to stop. Instead, the car led officers on a three-mile, high-speed chase.
During the pursuit, the vehicle ran 11 stop signs and struck another vehicle. The pursuing officers' speed reached 87 to 90 miles per hour. At one point, the car drove through two fences surrounding a high school, after which, the officers briefly lost sight of it.
The officers soon found the car in a park with no one inside. Just outside the car by the driver's side front bumper were three throwing knives. Inside the car on the driver's floorboard was a cell phone that appeared to belong to defendant and a wallet with an electronic benefit transfer (EBT) card with defendant's name on it.
An hour later, a canine officer found defendant in the backyard of a house a mile or two away. When the pursuing officers saw defendant after his arrest, they recognized him as the driver. Defendant was wearing two knife sheaths that fit the knives found outside the car.
At trial, the jury heard excerpts of a recorded jail call. In it, defendant told the caller, "I put myself here dad." When told he had been sent a package, he said, "It's not useful for getting me out of here dad. I'm guilty." Later he said, "I should've just pulled over and I would've fuckin been home."
Defendant also recalled portions of the police pursuit: "They were pulling me over from . . . Valero uh gas station over there by Wienerschnitzel." "I went through a fuckin fence over at the school." "In the car they were chasing me for a couple of minutes." "[T]he driver fucking behind me, fuckin he was pretty good. Fuckin but uh I lost them when I went through the fence." "[T]hey found [the backpack] in the back of the dude's house . . . [¶] . . . [¶] where they caught me at."
The jury found defendant guilty of evading a peace officer, with wanton disregard for safety; misdemeanor vandalism; and misdemeanor fleeing the scene of an accident. The trial court found defendant had two prior convictions. The court ultimately imposed a five-year term.
DISCUSSION
I
Defendant's Challenge To The Trial Court's Refusal To Exclude The Jail Recordings
Defendant first contends the trial court erred in denying his counsel's request to exclude the jail recordings. Alternatively, he contends the trial court should have granted a three-day continuance or instructed the jury on late discovery. We find no error.
Defendant also argues, for exhaustion purposes, that the dilatory disclosure of the recordings deprived him of his right to due process. For the reasons discussed below, we reject that contention.
On Monday, February 27, 2017, the day jury voir dire would start, the prosecutor informed the court that she had been reviewing defendant's jail calls and visits and found statements she intended to offer. She noted the recording was about an hour long and she wanted to present three to four minutes of it.
Defense counsel requested a continuance for "just the morning" to listen to the recording. The court agreed.
The next morning, defense counsel moved to exclude the jail call as untimely discovery, noting the calls had been recorded five months earlier. He added, things would have progressed differently had he known of the call.
Outside the jury's presence, defendant was offered a three-year plea deal in light of the recording. He rejected the offer.
The prosecutor explained she had received the recordings on Wednesday of the prior week. That day, she told defense counsel she was waiting on the jail calls and expected them by day's end. She gave the recording to defense counsel the following morning and informed the court she had received the calls and was reviewing them. She added that defense counsel could have sought a continuance that Thursday to review the calls.
The court declined to exclude the recordings, explaining the evidence had been provided as soon as it was received and both sides were aware of it the prior week. The court added, it would give the defense time to review the recordings.
Defense counsel requested a three-day continuance to "at least skim through the other calls," and talk to the people heard in the recordings. He noted the tape included at least 300 calls. He added that he also sought the continuance to research and raise a privacy and electronic wiretapping challenge.
The trial court rejected the privacy argument noting placards on the jail wall notify inmates that calls are recorded and hence defendant had no expectation of privacy. Defendant does not raise a privacy challenge on appeal.
The court replied that they were in the middle of jury selection and declined to "put a panel of [¶] . . . [¶] [f]orty-four people on hold for three days so we can listen to recordings that are not otherwise being presented." The court, however, reiterated it would give counsel time to review the recordings the prosecution intended to use -- and ultimately gave defense counsel overnight to review the call. It also admonished the prosecutor not to mention the jail calls in her opening statement. The prosecutor responded that her last witness would present the jail recording.
Defense counsel also asked for a late discovery jury instruction. The court noted there would be time to consider a late discovery instruction but cautioned, "I'm not sure that you want to point out [that] . . . what could be a confession of driving was late discovery." Defense counsel did not renew his request for a late discovery instruction prior to jury instruction.
The CALCRIM No. 306 untimely disclosure instruction includes a description of the evidence not timely disclosed.
Penal Code section 1054.1 requires the prosecutor to disclose statements of the defendant "if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies." But "the prosecution has no general duty to seek out, obtain, and disclose all evidence that might be beneficial to the defense." (In re Littlefield (1993) 5 Cal.4th 122, 135.)
Undesignated statutory references are to the Penal Code.
If a party has not complied with section 1054.1, a court may "make any order necessary to enforce the provisions of this chapter," including ordering immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, or continuance of the matter. (§ 1054.5, subd. (b).) The court, however, may only prohibit the testimony of a witness if all other sanctions have been exhausted. (§ 1054.5, subd. (c).) " 'The court's ruling on a discovery motion is subject to review for abuse of discretion.' " (People v. Prince (2007) 40 Cal.4th 1179, 1232.)
Here, nothing indicates the prosecutor breached her obligation to disclose recordings in her possession or that she knew were in the possession of investigating agencies. There is no indication she knew of the recordings until just before she provided them to the defense and defendant does not allege otherwise. With no violation, the trial court was not obliged to exclude the evidence, grant a continuance, or instruct the jury on late discovery.
Defendant, nevertheless, maintains the defense's informal discovery request, made months before trial, obligated the prosecution to locate and obtain recordings of defendant. In support, he cites In re Littlefield, supra, 5 Cal.4th 122 and People v. Little (1997) 59 Cal.App.4th 426. In re Littlefield held the defense could not refuse to provide addresses for defense witnesses by disclaiming knowledge of the addresses. (In re Littlefield, at pp. 129, 135-137.) Little, similarly held a prosecutor could not claim lack of personal knowledge in refusing to provide a witness's criminal history. (Little, at pp. 426, 433.)
Both cases are inapposite. Both involved readily available information, known to the parties to exist, and neither case created a duty for the prosecutor to seek out, obtain, and disclose all evidence that might be available to the defense. (See In re Littlefield, supra, 5 Cal.4th at p. 135 ["the prosecution has no general duty to seek out, obtain, and disclose all evidence that might be beneficial to the defense"].)
And were we to find a discovery violation, the trial court's actions were sufficient to cure it. The trial court granted defense counsel time to review the recordings that the prosecutor planned to offer at the trial and admonished the prosecutor to not mention the recordings in her opening statement. Had defense counsel wished for more time, he could have requested it between the time the prosecution provided the recording and the start of jury selection.
II
Defendant's Kelly-Frye Challenge
Defendant next contends the trial court erred in allowing a deputy sheriff to offer expert opinion testimony on the voice recognition software used to monitor inmate phone calls. We find no error.
Prior to the jury hearing the jail recording, a deputy sheriff testified. He testified his responsibilities included listening to jail phone calls and social visits.
He explained that to use the phones, inmates must enter an "X-reference" No. and a PIN. An "X-reference" No. is created for every inmate booked in Sacramento. Each phone call is assigned a specific call sequence number, which is associated with the inmate's "X-reference" No. The system is also voice activated, so once an inmate is enrolled, the system will "grab onto the voice." The voice recognition is used because sometimes an inmate will use another inmate's "X-reference" No. and PIN.
The deputy had retrieved one of defendant's recordings, which was identified through defendant's "X-reference" No., the voice recognition system, and the fact that defendant used the phone at that particular date and time.
On cross, the officer testified he was not a voice recognition expert, he did not know how to compare two voice samples, he was not present during defendant's voice calibration, and he had not heard defendant speak in person.
Outside the jury's presence, defense counsel noted that voice recognition is a scientific technique that must pass muster under Kelly-Frye and Evidence Code sections 801 and 802, adding there had been no evidence regarding the technique of voice recognition. He requested either an extended Evidence Code section 402 hearing or exclusion of the recording.
Kelly-Frye refers to People v. Kelly (1976) 17 Cal.3d 24 and Frye v. United States (D.C. Cir. 1923) 293 F. 1013.
Denying the request, the court allowed the officer to testify, provided a proper business record foundation. The court explained the witness was not testifying as an expert in voice recognition but as a custodian of records. And nothing about the recording was subject to Kelly-Frye: the voice identification was not used to identify the callers but to indicate if the inmate was using his personal "X-reference" No. and PIN. The court added, the recording was self-authenticating in that the inmate described the events of the chase.
Defendant contends the trial court erred in allowing the deputy to offer expert testimony regarding voice recognition. He argues there was no evidence regarding the reliability of the voice recognition software and its acceptance in the scientific community. He points to the deputy's admission he is not a voice recognition expert, that he does not know how to compare voice samples, he was not present when defendant's voice recognition was calibrated, and he has never heard defendant speak in person. Defendant is mistaken.
As the trial court noted, the deputy was not offering expert testimony on voice recognition. The deputy was testifying as a custodian of records. Further, the recording was not authenticated by voice recognition, but by the "X-reference" No. logged in the system and the fact defendant was using the phone at that particular time and date. Voice recognition was used as a check to ensure another inmate was not using defendant's "X-reference" No. and PIN.
Moreover, as the trial court noted, the recording was largely self-authenticating. In the recording, the inmate said he was pulled over from the Valero gas station; he went through a fence at the school; he was chased for a couple of minutes; he lost the police when he went through the fence; and he was found in a backyard with a backpack.
At bottom, the trial court did not err in allowing the deputy to testify regarding the jail recording.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Duarte, J. /s/_________
Hoch, J.