Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA042063 Floyd V. Baxter, Judge.
John D. O’Loughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Roberta L. Davis, and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Scott Arthur Watkins was convicted of six counts of second degree commercial burglary (counts 1, 2, 7, 8, 9, and 10), two counts of attempted burglary (counts 5 and 6), and one count of conspiracy to commit grand theft (count 3). He was found not guilty on count 4, which alleged attempted grand theft. He was sentenced to seven years eight months in prison.
The crimes occurred at various schools in Lancaster in the early months of 2008. Appellant made detailed confessions to all of the incidents when he was interviewed by Sheriff’s Detective Paul Zarris following his arrest.
Appellant contends that (1) the trial court abused its discretion when it denied his motion for discovery of Detective Zarris’s personnel records, under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); (2) the trial court gave incorrect instructions on the requisite mental states for the crimes; (3) there was insufficient evidence for the two counts of attempted burglary; (4) if there was enough evidence for those two counts, one of them should have been stayed pursuant to Penal Code section 654; and (5) a clerical error in the abstract of judgment must be corrected.
Unless otherwise indicated, all statutory references are to the Penal Code.
On September 11, 2009, the trial court corrected the clerical error in the abstract of judgment, after reviewing correspondence from counsel. We find no prejudicial error in appellant’s remaining contentions and affirm.
FACTS
1. Prosecution Evidence
A. The Truck Search
Appellant and his girlfriend lived in a white truck that had a large camper shell and a decal of wings on the rear window. When deputy sheriffs searched the truck on May 8, 2008, they found a jacket appellant wore during some of the incidents, stolen gift cards, a plastic straw, and an electronic scale.
B. The Confessions
Appellant was arrested on the date of the truck search. When he was interviewed by Detective Zarris, he said he used the straw in the truck to snort methamphetamine, and also sometimes injected that drug. He explained that the crimes were the idea of a woman named Angie Owen, whom Zarris could not thereafter locate. According to appellant, he participated with Owen in the crimes, and she gave him methamphetamine and cash. After he scouted the schools, he or Owen would go into classrooms to steal teachers’ wallets or other valuables. If school personnel questioned him about his presence on the campus, he would say that he wanted to enroll his daughter at the school and was looking for the school office.
For each of the incidents, appellant told Detective Zarris that he went to that school to look for something to steal. His accounts of the incidents matched the eyewitness testimony of teachers and other personnel at the schools. The evidence as to each count showed the following.
C. Count 1
Around 8:00 a.m. on February 4, 2008, appellant and Owen went to Del Sur Elementary School, hoping to find something to steal. Appellant entered the classroom of a teacher named Heidi Gray. He left the room when he discovered that Gray was inside it. He returned to his truck, where Owen was waiting. Owen entered the classroom when Gray was not there, stole Gray’s wallet from her purse, and shared the wallet’s contents with appellant. Gray learned of the theft that evening when her credit card company telephoned to ask about unusual use of her credit card at gas stations. She testified that appellant resembled the suspicious person she saw in her classroom, and her wallet had contained store cards and gift cards like those found in appellant’s truck.
D. Counts 2 and 3
Around 8:30 or 8:45 a.m. on February 11, 2008, appellant and Owen drove to Learning Tree Preschool in appellant’s truck, hoping to find something to steal. A teacher named Jessica Bloemendahl saw appellant walking through the campus in a suspicious manner. Appellant opened the door of the classroom of Sheri Koppers, but Koppers was in the room. He asked Koppers where the office was, she told him, and he returned to his truck. He and Owen then tried to enter parked vehicles in the parking lot. Watching from a window, Bloemendahl and another teacher wrote down the license plate number of appellant’s truck. Alerted by Bloemendahl, the school’s director, Laura McCullough, began approaching appellant in the parking lot. He returned to his truck and left in it with Owen. At the trial, Koppers and McCullough identified appellant as the man they saw, and Bloemendahl identified appellant’s truck. McCullough further testified that on two subsequent occasions, she saw appellant and the truck at a nearby gas station. On the second of those occasions, he wore the distinctive jacket later found in his truck.
E. Counts 5 and 6
About 2:15 p.m. on February 15, 2008, appellant tried to open the door of Shaun Tyson’s classroom at Valley View Elementary School. Tyson was inside the room at the time. She opened the door and spoke with appellant. He asked for the school office, she told him where it was, and he headed off in that direction. Shortly later, as Tyson was leaving the school, she saw appellant pulling on the doorknob of another classroom. He then walked out of the school and entered his truck, which drove away. At the trial, Tyson identified appellant and the truck.
F. Count 7
Around 2:30 p.m. on February 20, 2008, appellant and Owen returned to Valley View Elementary School, again looking for something to steal. Appellant walked into the classroom of Beverly Mewborne, who was inside the room at the time. Mewborne asked appellant if she could help him. He told her he was looking for the office. She gave him directions. He walked to the office and asked a clerk, Vicki Means, “where the nearest Christian school was.” Means told him, and he left the office. He saw Shaun Tyson looking at him and realized that he had spoken with her the previous time he was at the school. He returned to the office and asked Means for a different exit. He followed that route, returned to his truck, and drove away. At the trial, Tyson and Means identified appellant as the person they saw at the school on February 20. They also identified his distinctive jacket.
G. Count 8
Around lunchtime on April 24, 2008, appellant entered the office of the cafeteria at New Vista Middle School, hoping to find something to steal. Elizabeth Tellez, the school’s head cook, asked him what he wanted. He said he had run out of gas and needed a telephone to call his girlfriend. Tellez let him use her telephone. After that, he told he had left a message for his girlfriend. Tellez gave him instructions for leaving the campus. As he walked away, she saw that he was not following the route she gave him, so she called campus security.
Mary Binkowski, another school employee, encountered appellant in a hallway. Appellant told Binkowski that he had run out of gas and needed a telephone. He became agitated, left the school, and drove off in his truck. At the trial, Tellez and Binkowski identified appellant as the man they saw at the school.
H. Count 9
On February 20, 2008, appellant went to Joe Walker Middle School, again with the intent to steal. In a hallway, appellant told a teacher, Wesley Thomas, that he was looking for the office. Thomas walked with appellant to the office and then left. Appellant asked Shirley Hill, the school’s secretary, for the packet needed to enroll a child at the school. Hill gave appellant the packet, and then told him he could leave the campus by the same route he had already taken. Appellant said he did not want to go out that way, as a teacher had been nervous about him. Hill showed appellant how to leave through the front door. He did so. At the trial, Thomas and Hill identified appellant.
I. Count 10
Around the time that school let out on February 20, 2008, appellant and Owen went to Del Sur Elementary School, looking for something to steal. The wallet of a teacher named Sheryl Sarna was stolen while Sarna was briefly out of her classroom. Appellant later told Detective Zarris that after he scouted out Sarna’s classroom, Owen went onto the campus and stole a wallet from it. At the trial, appellant’s girlfriend, Cynthia Wheeler, was sitting in the audience area of the courtroom. Sarna testified that she saw Wheeler at the school around the time her wallet was stolen.
J. Additional Evidence
On March 31, 2008, appellant was wearing the distinctive jacket when he spoke with Deputy Sheriff Steve Owen. He told Deputy Owen that he had track marks on his arms because he had been injecting methamphetamine.
2. Defense Evidence
Appellant’s sister testified that appellant frequently asked her for money for gas, she usually gave it to him, and when she did not, he would ask other relatives and friends for it.
DISCUSSION
1. The Pitchess Issue
Appellant contends that he showed good cause for in chambers review of Detective Zarris’s personnel records under Pitchess, supra, 11 Cal.3d 531 and related cases.
A. The Record
Appellant’s written Pitchess motion requested,as to Detective Zarris, “[a]ll complaints from any and all sources relating to acts of fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion and/or probable cause, false arrest, perjury, dishonesty, writing of false police reports, writing of false police reports to cover up the planting of evidence, false or misleading internal reports including but not limited to false overtime or medical reports, and any other evidence of misconduct amounting to moral turpitude within the meaning of People v. Wheeler (1992) 4 Cal.4th 284.”
The motion included a declaration from defense counsel that stated, as to the specific facts of this case:
“According to an L.A. Sheriff’s Department Supplemental Report dated May 8, 2008, file #408-09014-1137-341 (hereafter ‘report’) Detective Paul Zarris interviewed Scott Arthur Watkins while Watkins was in custody at Lancaster Station Jail. The report contains statements attributed to Watkins that Watkins denies making. Specifically, Watkins denies making the following statements[:] [¶] On page 5 of the report, paragraph one[:] ‘He (Watkins) admitted he went onto the campus with the intent to steal anything he could use to get gas.’ [¶] On page 5, paragraph two[:] ‘He (Watkins) said he goes on the school campuses to get the layout of the school so Angie can steal credit cards.’ [¶] On page 6, paragraph one[:] ‘He (Watkins) went on the campus to check out the layout so Angie could steal wallets or anything they could sell.’ [¶] On page 6, paragraph three[:] ‘Watkins admitted he walked onto the campus with the intent to steal something.’ [¶] On page 6, paragraph five[:] ‘He (Watkins) said Angie wanted him to check out the layout of the school so he walked onto the campus and entered a classroom.’” (Boldface and underscoring omitted.)
Defense counsel’s declaration continued:
“It is on information and belief that I declare the following: [¶] The detective in this case made material misstatements with respect to the alleged statements made by Watkins, fabricating the admission as set forth in the arrest report. Under the police theory, Watkins burglarized and attempted to burglarize several schools and the supplemental report states that Watkins admitted to doing so. [¶] Contrary to the report, Watkins did not make any such statements at any time to any sheriff[’s] officer. Watkins denies making any of these statements, instead asserting that they are all fabrications. What really transpired was that [D]etective Zarris added these false statements to the report in an effort to have criminal charges filed against Watkins. The alleged statements will be used to prove charges pending against Watkins. The detective in this case fabricated the statements in order to aid in the prosecution of Watkins. [¶] A material and substantial issue in the trial will be the character, habits, customs and credibility of the officer. This information is necessary to show that the charges against Mr. Watkins are unfounded.” (Boldface and underscoring omitted.)
Detective Zarris’s supplemental report was attached to the Pitchess motion. It included appellant’s detailed confessions to each of the crimes. His descriptions of what he did extended far beyond the isolated sentences that were attacked in defense counsel’s declaration. The report also showed that appellant’s truck shell contained the distinctive clothing appellant wore during some of the incidents.
As an example, we quote here the report’s summary of what appellant told Detective Zarris about the two incidents at Valley View Elementary School: “S/Watkins admitted he went to the school with Angie Owen two different times. He went on the campus to check out the layout so Angie could steal wallets or anything they could sell. He said the first time he walked past the school office and went to the rear classrooms. S/Watkins said a teacher (W/Shaun Tyson) contacted him when he was checking the classroom doors to see if they were open. She directed him to the front office. He admitted approximately 5 minutes later, the same teacher saw him attempting to open classroom doors near the office. He said the teacher followed him off the campus and he left in his truck. [¶] S/Watkins stated Angie and he returned about a week later. He admitted he walked into a classroom and saw a teacher (W/Bev Mewborne) sitting at her desk. She directed him to the office. S/Watkins said he got ‘spooked’ when he walked out of the office and saw the same teacher (W/Shaun Tyson) he saw the prior week talking with the other teacher (W/Bev Mewborne). He said he walked back to his truck and drove away.”
The opposition to the Pitchess motion argued that, even if it was true that appellant did not tell Detective Zarris that he went onto the campus of each school with the intent to steal, appellant had not presented the specific factual scenario that was required for his motion to be granted. The opposition requested judicial notice of the search and arrest warrants.
The Honorable Thomas R. White heard and denied the Pitchess motion on July 24, 2008, finding that appellant had not alleged facts that would show good cause and materiality for the discovery. In explaining his ruling, Judge White stated:
“Warrick [v. Superior Court (2005) 35 Cal.4th 1011 (Warrick)] has given us some guidance. It has certainly loosened up the requirements that the court reviews in terms of going forward with in camera and finding good cause; however, subsequent cases even have not done away with all the specificity that had been required even before Warrick.... I don’t see that there is sufficient specificity set forth in this case[. I]f the court does take judicial notice of the warrants, which had been asked, and the warrants certainly are part of the court file, and reviewing the facts set forth in the attachments of the defense in terms of the report, I feel that most of the requests are overbroad, self-serving and conclusory. It appears the defendant has just denied statements that are alleged by the deputy. There is nothing else that would give the court an opportunity to find a specific factual scenario, which is what I am required to still do even under Warrick and its progeny.”
B. Analysis
“A motion for discovery of peace officer personnel records is addressed to the sound discretion of the trial court, reviewable for abuse.” (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
Pitchess, supra, 11 Cal.3d 531, “established that a criminal defendant could ‘compel discovery’ of certain relevant information in the personnel files of police officers by making ‘general allegations which establish some cause for discovery’ of that information and by showing how it would support a defense to the charge against him.” (Warrick, supra,35 Cal.4th at pp. 1018-1019.) The statutory scheme codifying Pitchess is set forth in Evidence Code sections 1043 through 1047 and Penal Code sections 832.5, 832.7, and 832.8. That scheme requires a showing of “good cause” for discovery of the information and “materiality” of the information or records sought to the subject matter involved in the pending litigation. (Evid. Code, § 1043, subd. (b)(3); People v. Mooc (2001) 26 Cal.4th 1216, 1226.)
“To show good cause as required by [Evidence Code] section 1043, defense counsel’s declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges.” (Warrick, supra, 35 Cal.4th at p. 1024.) The defendant must “establish not only a logical link between the defense proposed and the pending charge, but also... articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.” (Id. at p. 1021.) “What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents.” (Id. at p. 1025.) A plausible scenario of officer misconduct is “one that might or could have occurred.” (Id. at pp. 1016, 1025-1026.)
Here, appellant did not “propose a defense... to the pending charges,” as required by Warrick, supra, 35 Cal.4th at page 1024. He did not deny that he committed the crimes or that he admitted them during his interview with Detective Zarris. His Pitchess motion attacked only isolated sentences in Zarris’s report, chiefly on the issue of whether he said he went onto the campus of each school with the intent to steal. He did not deny that he went to the campuses with Owen, scouted around for situations where wallets could be taken, and took wallets or helped Owen to take them. As he never proposed a defense, the trial court did not err when it refused to conduct in camera review of Zarris’s personnel records.
2. The Instructions on Intent
Both sides agree that the charged crimes required specific intent. Appellant contends that the trial court committed prejudicial error when, at one point in the instructions, and contrary to the other instructions it gave, it stated that burglary, attempted burglary, and attempted grand theft were general intent crimes.
Although the jury returned a not guilty verdict on count 4, attempted grand theft, our discussion includes that count, as it was included in the instructional error.
A. The Record
The erroneous instruction was CALCRIM No. 252, on the union of act and intent. It stated:
“The crimes charged in counts 1, through 10, require proof of the union or joint operation of act and wrongful intent. The following crimes require general criminal intent[:] burglary as charged in counts 1, 2, 7, 8, 9, and 10; attempted grand theft as charged in count 4,... and attempted burglary as charged in counts 5, and 6. [¶]... [¶] The following crime requires a specific intent or mental state[:] conspiracy, as charged in count 3. For you to find a person guilty of this crime, that person must not only intentionally commit the prohibited act, but must do so with a specific intent and/or mental state. The act and the specific intent and/or mental state required are explained in the instructions for that crime.” (Italics added.)
We compare the words of that instruction with the other instructions that were given.
CALCRIM No. 415 stated that for the conspiracy count, the People had to prove that the defendant agreed with another person to commit theft.
CALCRIM No. 460 instructed that the elements of the attempted grand theft in count 4 and the attempted burglaries in counts 5 and 6 were: “1. The defendant took a direct but ineffective step toward committing theft or burglary; [¶] AND [¶] 2. The defendant intended to commit theft or burglary.”
For the burglaries in counts 1, 2, 7, 8, 9, and 10, and the attempted burglaries in counts 5 and 6, the jury was told, through CALCRIM No. 1700, that the People had to prove that: “1. The defendant entered a building; [¶] AND [¶] 2. When he entered a building he intended to commit theft.”
The jury further learned, through CALCRIM No. 1702, that “[t]o be guilty of burglary as an aider and abettor, the defendant must have known of the perpetrator’s unlawful purpose and must have formed the intent to aid, facilitate, promote, instigate, or encourage commission of the burglary before the perpetrator finally left the structure.”
Similarly, CALCRIM No. 1800 instructed that on the counts of attempted grand theft and conspiracy to commit theft, the People had to prove that appellant intended to permanently deprive the owner of the property, when he took it.
B. Analysis
A failure to instruct upon the elements of a charged offense generally constitutes federal constitutional error. (People v. Sakarias (2000) 22 Cal.4th 596, 624-625; Neder v. United States (1999) 527 U.S. 1, 8-9.) Here, rather than an omission, there was a conflict in the instructions on the intent element. The modified version of CALCRIM No. 252 erroneously instructed that the crimes required general intent, but the other instructions repeatedly stated that the crimes required specific intent or the intent to steal.
Assuming arguendo that the federal harmless error standard applies, we are convinced that the error in CALCRIM No. 252 was harmless. Except for CALCRIM No. 252, the jury was told, over and over, that the crimes required the intent to steal. During argument, the prosecutor stressed that the evidence proved that appellant had the intent to steal other people’s property, as shown by his confessions to each incident and his behavior at each of the schools. In our view, the People’s case contained overwhelming evidence that appellant went to all of the schools with the specific intent to steal. Under the circumstances, “[i]t is clear to us that the error in the instruction[] did not influence the verdict and that [appellant] was not harmed by it.” (People v. Booth (1952) 111 Cal.App.2d 106, 109; see also People v. Butcher (1959) 174 Cal.App.2d 722, 732-733.)
3. Sufficiency of the Evidence for Counts 5 and 6
Appellant contends that there was insufficient evidence that he committed two attempted burglaries at Valley View Elementary School on February 15, 2008. Applying the appropriate standard of review (People v. Kraft (2000) 23 Cal.4th 978, 1053), we find sufficient evidence for those counts. Shaun Tyson testified that she spoke to appellant when he tried to open the door of her classroom, and she later saw him trying to open the door of another classroom. Appellant admitted to Detective Zarris that he went to the school to find something to steal, he was trying to open the door of a classroom when a female teacher came out, and he thereafter tried to open up doors of classrooms at another part of the school. His attempts to enter different classrooms constituted sufficient evidence for the two counts of attempted burglary. (People v. Elsey (2000) 81 Cal.App.4th 948, 950-951 [sufficient evidence for six counts of second degree burglary, where defendant entered five different classrooms and the school’s office].)
4. Section 654
Consecutive sentences were imposed on counts 5 and 6, the two attempted burglaries at Valley View Elementary School that were discussed in the preceding issue. Appellant contends that one of those counts should have been stayed, due to section 654’s prohibition against multiple punishment. The contention lacks merit, as the prohibition against multiple punishment does not apply to the separate attempted burglaries that were committed. (People v. Bowman (1989) 210 Cal.App.3d 443, 448; see People v. Williams (1992) 9 Cal.App.4th 1465, 1474.)
The title of this issue indicates that the problem concerns counts 3 and 4, but the discussion of this issue shows that the asserted problem is with counts 5 and 6.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J., BIGELOW, J.