Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-051606-2
Sepulveda, J.
Defendant appeals following his conviction for felony drug possession and misdemeanor resisting arrest. We reject his argument that he was denied his right to a competent interpreter during trial. We agree, however, that there were problems with a discovery hearing held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We therefore conditionally reverse the judgment and remand for a new Pitchess hearing.
I.
Factual and Procedural Background
About 10:30 p.m. on August 19, 2005, two Contra Costa sheriff’s deputies were on patrol in a marked patrol car near the intersection of Sixth Street and Ohio Avenue in Richmond, an area “where they had a lot of experience with narcotics and drug-related offenses.” They saw defendant standing against an “industrial-type building” at the intersection; he appeared to be monitoring traffic. One of the deputies noticed “a big bulge” in defendant’s right front pocket, and defendant appeared nervous. After he looked in the direction of the sheriff’s deputies, he immediately put his hands in his pockets and started walking toward them. Defendant took about four or five steps toward the deputies, then immediately changed direction. The sheriff’s deputies pulled alongside defendant and stopped their car. One of the deputies got out of the car and asked defendant if he could talk to him. Defendant did not respond, and instead started running with his hands still in his pocket down Ohio Avenue.
Both deputies chased defendant with their guns drawn and yelled “ ‘Stop. Police,’ ” multiple times. Defendant eventually ran behind a house on Ninth Street, and one of the deputies found him hiding behind a small detached garage. The deputy ordered defendant onto the ground in both English and Spanish. Defendant turned and faced the deputy, and immediately placed his hands up. The deputy kicked defendant in his chest onto his back because he was not complying with his orders, and because he “was already fatigued from running [and] wanted to get control of [defendant] as quickly as [he] could.” Defendant fell onto grass that appeared to be freshly cut.
Another sheriff’s deputy arrived shortly thereafter and handcuffed defendant. The two sheriff’s deputies found five individually wrapped packages of a white chunky substance on the ground near defendant. The packages were dry. The substance in the packages was later tested and found to contain 1.91 grams of cocaine base.
Defendant testified at trial that on August 19, 2005, he worked in San Rafael. About 9:00 p.m. (a few hours after defendant got off work), his wife called him from her mother’s flower shop in Richmond and asked him to take a bus to meet her. As he was walking from the bus stop to the home of his mother-in-law, he saw an officer open the door of his patrol car and yell at him. When defendant saw the officer pull his gun, he got frightened that the officer would shoot him, so he ran. When asked if he possessed drugs on August 19, 2005, defendant testified, “No. Never.”
Defendant was charged by information with felony possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)—count 1) and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)—count 2). The information also alleged that defendant was ineligible for probation based on two prior felony convictions (Pen. Code, § 1203, subd. (e)(4)). A jury found defendant guilty on both counts, and he was sentenced to the midterm of two years in prison on count 1, with a concurrent one-year county jail term on count 2. This timely appeal followed.
II.
Discussion
A. Inadequate Record to Review Denial of Pitchess Motion.
Before trial, defendant filed a motion pursuant to Pitchess, supra, 11 Cal.3d 531, seeking information relating to the sheriff’s deputy who kicked him before he was arrested and who discovered the packages of drugs near defendant. The trial court conducted an in camera hearing, and concluded that there was “no Pitchess info[rmation] to provide.” Defendant seeks our review of the sealed transcript of the in camera hearing to determine whether the trial court abused its discretion in denying his motion, and respondent agrees that defendant is entitled to such review. (People v. Mooc (2001) 26 Cal.4th 1216, 1229-1232 (Mooc).)
“When a trial court concludes a defendant’s Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer’s personnel files, the custodian of the records is obligated to bring to the trial court all ‘potentially relevant’ documents to permit the trial court to examine them for itself.” (Mooc, supra, 26 Cal.4th at pp. 1228-1229.) “The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant’s Pitchess motion. A court reporter should be present to document the custodian’s statements, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record.” (Id. at p. 1229; see also People v. Guevara (2007) 148 Cal.App.4th 62, 69 (Guevara).)
“The trial court should then make a record of what documents it examined before ruling on the Pitchess motion. Such a record will permit future appellate review. If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party’s ability to obtain appellate review of the trial court’s decision, whether to disclose or not to disclose, would be nonexistent.” (Mooc, supra, 26 Cal.4th at p. 1229.)
Having reviewed the sealed transcript of the Pitchess motion, we conclude that the trial court did not make a sufficient record of what documents it examined. (Mooc, supra, 26 Cal.4th at p. 1229.) Because the record is insufficient for us to determine whether the trial court properly exercised its discretion in denying discovery, we are compelled to conditionally reverse the judgment and remand for a new Pitchess hearing in which the proper procedure is followed. (Mooc, supra, 26 Cal.4th at p. 1231; Guevara, supra, 148 Cal.App.4th at p. 69.) On remand, the trial court should look to the decisions in Mooc and Guevara, supra, for guidance.
B. No Denial of Right to Competent Interpreter.
1. Background.
Various interpreters translated for defendant during trial, and defendant testified through an interpreter. He testified through either Kristen Nickel or Lupita Sutton during his direct examination and the beginning of cross-examination on March 29, 2006. A different interpreter, Daniel Jacobs, translated for defendant when cross-examination resumed the following morning (on March 30). After defendant completed his testimony on March 30, the trial court was informed that another interpreter (Raquel Brewer) reported some concerns with the translation provided by Jacobs.
The trial court held a hearing outside the presence of the jury to question defendant and interpreter Brewer about Jacobs’s translation. Defendant stated that “mostly about 98 percent I understood the questions,” but that there were “two or three” questions that confused him. Specifically, he had trouble when the interpreter “translated if I had seen the policeman coming towards me, and when [the prosecutor] was showing me the photographs, asking me if this was me or wasn’t me.” He also was confused when the prosecutor “asked me if I had run away from the policeman, [the interpreter] got confused in that explanation.” He explained, “When [the prosecutor] asked me if I knew if it was me, if I was reading the numbers of the streets and if I had passed by many times those streets. In those questions I got confused. I noticed that in the way that [the interpreter] was telling me things, he was not telling me exactly what you [the prosecutor] were saying. [¶] . . . [¶] He would say ‘ah, ah, ah,’ things like that. But the rest of it, about 98 percent, I really did understand.”
Interpreter Brewer testified that she had been in the courtroom when defendant testified on cross-examination through Jacobs. She stated that as some questions were translated into Spanish, “there was some stuttering that made it difficult for me to understand the translation into Spanish sometimes.” She explained that “[f]or the most part I think it [the translation] was accurate. I did not notice critical errors.” Brewer described specific lines of questioning where there may have been problems. She explained that when the translation about a street sign should have been, “ ‘The sign said street No. such-and-such,’ ” the translation in fact left out “that whole expression.” Brewer also stated that at one point Jacobs did not accurately translate the Spanish word “ ‘anden,’ ” which means “ ‘sidewalk.’ ” She also explained that “at one point the English question said something about how [defendant] looked. How you looked or something to that effect in English. The translation into Spanish, I don’t remember precisely. But in the answer, the witness said, ‘I remember what I was wearing, but not necessarily what I looked like.’ And that was not conveyed into English.” She emphasized that “I did not, to my lay ears, I did not notice any major, major errors. I just noticed certain holes throughout the interpretation.”
Defendant moved for a mistrial, arguing that his right to a competent interpreter had been violated. He claimed that confusion over certain questions made him appear uncooperative. Defendant also requested a jury instruction directing jurors to disregard his demeanor during his testimony on March 30.
The proposed instruction stated: “In evaluating Mr. Araujo’s testimony, you are not to consider his behavior and demeanor during his testimony on Thursday morning. Mr. Araujo did not understand many of the questions the interpreter translated to him, and thus was unable to answer some of the questions directly. Mr. Araujo had difficulty understanding that interpreter’s Spanish. The other interpreter in the courtroom at the time Mr. Araujo was testifying on Thursday also had difficulty understanding the interpreter that was assisting Mr. Araujo. Mr. Araujo stated that he had difficulty understanding the interpreter immediately upon completion of his testimony. [¶] In addition, several of the words and phrases interpreted back into English were not translated completely or correctly. You must not consider any perceived failure on Mr. Araujo’s part to completely and succinctly answer questions during his testimony on Thursday, as this is at least in part attributable to the interpreter.”
The trial court denied the motion for a mistrial, and declined to use defendant’s proposed jury instruction. The trial court said it appeared that defendant understood “quite well the questions that were posed to him, and his answers that were given appeared to this Court to certainly be responsive to those questions.” The court provided specific examples. The trial court concluded that “based on what I heard from Mr. Araujo, from Ms. Brewer, and on—the transcript of the proceedings, and my observations of these proceedings, I do believe that Mr. Araujo received a competent interpreter in this matter.”
2. Analysis.
“We review the denial of a motion for mistrial under the deferential abuse of discretion standard. [Citations.] ‘A motion for mistrial is directed to the sound discretion of the trial court. We have explained that “[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” ’ [Citations.]” (People v. Cox (2003) 30 Cal.4th 916, 953.) Defendant argues that the denial of his motion for a mistrial was “a clear abuse of discretion.” We disagree.
The California Constitution provides that “[a] person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings.” (Cal. Const., art. I, § 14; see also People v. Aguilar (1984) 35 Cal.3d 785, 787.) A criminal defendant has a right to a “competent interpreter.” (People v. Estrada (1986) 176 Cal.App.3d 410, 415.) “The question of an interpreter’s competence is a factual one for the trial court.” (People v. Aranda (1986) 186 Cal.App.3d 230, 237; see also People v. Mendes (1950) 35 Cal.2d 537, 543.) We will not disturb this ruling on appeal unless a manifest abuse of discretion is shown. (People v. Roberts (1984) 162 Cal.App.3d 350, 355 [no abuse of discretion to admit prior testimony of witness who testified through noncertified interpreter].)
Here, the trial court held a hearing to determine whether concerns raised about interpreter Jacobs were valid, but concluded that defendant had received a competent interpreter. Defendant does not point to anything in the record to indicate the trial court’s ruling was an abuse of discretion. He claims that “the interpreter provided admittedly incorrect translation on a crucial point—the address of his mother-in-law’s residence.” What defendant fails to point out is that his testimony on this “crucial point” came on March 29, when either Nickel or Sutton was translating, not on the morning of March 30, when Jacobs served as interpreter. Although the interpreter acknowledged an error, it was immediately corrected. (People v. Mendes, supra, 35 Cal.2d at p. 543 [no denial of right to competent interpreter where errors are corrected].) Defendant points out that the testimony allowed the prosecution to present rebuttal evidence that the address defendant provided did not exist. As respondent notes, however, defendant took no steps to correct his previous testimony to show that he had given an incorrect address because of an interpreter error (or for any other reason). In fact, defendant declined an opportunity to reopen his case to provide clarification on any answers he gave during his testimony.
Defendant was asked by his attorney about “[w]hat house” he walked to after he rode a bus to Richmond. He testified, “My mother-in-law. It’s not a house. It’s a building.” He testified that the building was located at “16th and Ohio.” During the prosecution’s cross-examination of defendant, the following exchange occurred:
Neither side points out this significant fact in their appellate briefs. Defendant’s counsel acknowledged during oral argument that she did not realize that a different interpreter served on the day in question until she was preparing for argument. We emphasize that “[e]ffective briefwriting requires personal familiarity with the record,” and that counsel should have adequately reviewed the record before preparing an opening brief. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 9:13, p. 9-4.)
A Richmond police officer testified that there is no such address as 716 16th Street in Richmond, and that the closest building was a single-family residence (not an apartment building as defendant testified). The officer also testified that the intersection where defendant was first spotted was about 17 blocks away from the 700 block of 16th Street, and that the station that one would use after riding the bus from San Rafael would be about three blocks from 700 16th Street. The officer testified on cross-examination that “7, 16th Street, Apartment B” is about one block away from where defendant was first seen, and that someone might walk down Ohio Avenue to get to that address from the bus station. Defendant offered no further evidence that he was, in fact, walking to that particular block of 16th Street on the night in question.
Respondent argues that defendant’s failure to reopen the case waived any claim of error regarding alleged deficiency in translation of testimony. (E.g., People v. Uptgraft (1970) 8 Cal.App.3d Supp. 1, 10 [defendants not entitled to a new trial for failure to disclose evidence where prosecution disclosed it as soon as it was discovered after its case was complete, and defendants declined to reopen].) Defendant argues that it would be inappropriate to find waiver here, because reopening his case “could have backfired and given the jury an even worse impression.” Even assuming arguendo that the issue was waived, we address the merits in order to forestall a possible ineffective assistance of counsel claim.
Contrary to defendant’s assertion, the record does not “clearly show[]” that Mr. Jacobs’s interpretation during cross-examination caused defendant to “appear nervous and answer the questions in a manner that gave the impression he was being evasive.” The trial court was in the best position to evaluate defendant’s responses to questions, and it concluded that defendant understood “quite well the questions that were posed to him, and his answers that were given appeared to this Court to certainly be responsive to those questions.” Defendant suggests on appeal that the prosecutor acknowledged below that defendant’s demeanor was different during cross-examination; however, the difference was not attributed solely to any issues with translation. Instead, the prosecutor argued to the trial court: “And there was a significant difference between his appearance on the stand today than yesterday. I did notice a difference. But I think that that also had to do with the fact that I had many more pointed questions today. I had definitely exact points where I was going with it, and they were on points where there were holes in his testimony yesterday. And I think because of that, that also weighed into why he appeared different today than yesterday.” (Italics added.)
Because we conclude that defendant was not deprived of his constitutional right to an interpreter throughout the proceedings, we need not decide whether any such error was harmless beyond a reasonable doubt. (People v. Rodriguez (1986) 42 Cal.3d 1005, 1012, citing Chapman v. California (1967) 386 U.S. 18, 24.) Although interpreter Brewer testified that there were “certain holes” in Jacobs’s translation, she also said that she did not notice any “major errors.” Defendant himself testified that he understood “mostly about 98 percent” of the questions. The trial court did not abuse its discretion in denying a mistrial.
The trial court also did not err in denying defendant’s proposed jury instruction that jurors disregard his demeanor during his testimony on March 30. Simply stated, it contained factual misstatements about the extent of any supposed misunderstanding by defendant of his interpreter’s translation.
III.
Disposition
The judgment is conditionally reversed. The case is remanded to the trial court with directions to hold a new in camera hearing on defendant’s Pitchess motion in conformance with the procedures described in Mooc, supra, 26 Cal.4th 1216, and Guevara, supra, 148 Cal.App.4th 62. If the trial court finds that there are discoverable records, they shall be produced and the court shall conduct such further proceedings as are necessary and appropriate. If the court again finds there are no discoverable records, or that there is discoverable information but defendant cannot establish that he was prejudiced by the denial of discovery, the trial court shall reinstate the original judgment and sentence which shall stand affirmed. (Guevara, supra, 148 Cal.App.4th at pp. 69-70; People v. Hustead (1999) 74 Cal.App.4th 410, 423.)
We concur: Ruvolo, P. J., Reardon, J.
“Q. Do you know what the address is of your mother-in-law’s house?
“A. Of course.
“Q. What is it?
“A. 717 16th.
“Q. 7?
“A. 717. 716.
“Q. 716?
“A. Richmond, California, Apartment B.
“Q. I’m sorry. I must not be understanding. What’s the address number?
“THE INTERPRETER: I’m sorry. The interpreter interpreted it incorrectly.
“THE WITNESS: Apartment B, 716, Richmond, California.
“BY [THE PROSECUTOR]: What’s the name of the street?
“A. 16.
“Q. So it’s 716 16th Street, Apartment B?
“A. Exactly.”