Opinion
E078003
06-13-2023
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO ALARCON ARMILLA, Defendant and Appellant.
Britton Donaldson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene Sevidal and Susan Elizabeth Miller, Deputy Attorney Generals, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. BAF2100548 Henry M. Elias, Judge. (Retired Judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.
Britton Donaldson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene Sevidal and Susan Elizabeth Miller, Deputy Attorney Generals, for Plaintiff and Respondent.
OPINION
MILLER, ACTING P. J.
A jury found defendant and appellant Francisco Alarcon Armilla guilty of arson of a structure (Pen. Code, § 451, subd. (c)) and vandalism (§ 594, subd. (a)). The jury found true the allegation that the arson occurred during a state of emergency. (§ 454, subd. (a)(2).) The trial court granted defendant two years of formal probation. One of the conditions of defendant's probation is that he must participate in and complete "any counseling, rehabilitation/treatment program deemed appropriate by [defendant's] probation officer." (Condition Seven).
At some places in the record, defendant's name is spelled Alarconarmilla, while in other places, his name is spelled Alarcon Armilla. On motions filed by the defense, defendant's name is spelled both ways. It is unclear which name is correct. The "Prohibited Persons Relinquishment Form" appears to have been completed by defendant and so we use Alarcon Armilla.
All subsequent statutory references will be to the Penal Code unless otherwise indicated.
The reporter's transcript reflects that the trial court imposed two years of formal probation. The sentencing minute order reflects that the trial court imposed four years of formal probation. We follow the reporter's transcript. (People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.).
Defendant raises two issues, one of which has a variety of sub-issues. First, defendant contends he was denied his state and federal rights of due process by the cumulative effect of (a) the police and prosecutor failing to preserve video evidence; (b) the prosecutor failing to disclose statements by police officers; and (c) the prosecutor misstating the reasonable doubt standard during closing argument. Second, defendant asserts Condition Seven is unconstitutionally vague. We affirm with directions.
FACTUAL AND PROCEDURAL HISTORY
A. CRIME
On April 25, 2021, between 9:53 a.m. and 10:04 a.m., defendant set a cardboard box on the exterior recessed windowsill of a business in Beaumont (the business). Defendant lit the box on fire, blackening the aluminum window frame and causing the window to shatter.
B. VIDEO
A co-owner of the business (Owner) arrived at the business around 10:20 a.m. on April 25, 2021, and noticed the damaged window within 10 minutes. Owner reviewed a security/surveillance video to determine what happened to the window.
On the video, Owner saw that defendant and a second person were at the business "a good hour and a half" before the fire. The video showed the two people "talking to themselves, walking around, riding their bikes, stopping, riding their bikes, stopping, going into the street, coming out of the street," and defendant "waving his hands in the air at cars passing by." The second person left after "five, ten minutes" and had not been near the window that burned. After starting the fire, defendant left. In the video, defendant was wearing a camouflage jacket and he had a white bicycle.
Beaumont Police Officer Rodriguez (Rodriguez) responded to Owner's 911 call. Rodriguez reviewed portions of the security video; other parts were fast-forwarded through. Rodriguez asked Owner to give her a copy of the security video but Owner did not know how to make a copy. Therefore, Rodriguez used her camera to video record clips of the security video, i.e., she made a video of the video. Rodriguez was at the business for approximately one hour.
C. ARREST
Beaumont City Police Officer Heidrich (Heidrich) had been advised that police were looking for a man wearing a camouflage jacket and who had a white bicycle. On April 25, 2021, at approximately 1:00 p.m., Heidrich saw defendant "acting erratic, flailing his hands above his head, pacing back and forth, kind of yelling." Heidrich noticed a white bicycle leaning against the building behind defendant, and a camouflage jacket was on the ground within a foot of the white bicycle. Defendant was approximately half a mile from the business. Defendant was arrested.
DISCUSSION
A. DUE PROCESS
1. FAILURE TO COLLECT THE ORIGINAL VIDEO
a. Procedural History
In the trial court, defendant moved to dismiss the case due to the police and prosecutor failing to collect the original surveillance video from the business. The fire occurred on April 25, 2021. The prosecutor filed the complaint on April 28, 2021. The prosecutor received defendant's discovery request on May 28, 2021, and gave defendant all of the discovery materials the prosecutor possessed, including the video of the original surveillance video. The preliminary hearing occurred on July 9, 2021. Defendant moved to compel discovery on July 28, 2021, requesting various items including the surveillance video. On August 4, 2021, the prosecutor again gave defendant the video of the original surveillance video. On August 13, 2021, during a hearing on the motion, defendant clarified that he was seeking the complete original surveillance video, rather than a recording of clips of the original video.
The People offered to have Rodriguez obtain the original surveillance video. In August 2021, Rodriguez went to the business to obtain the surveillance video, but it had been lost in July due to "some power issues" that required the business's surveillance system to reinitialize the hard drive, which wiped the hard drive clean. Owner told Rodriguez the video was lost.
Defendant filed his motion to dismiss on September 20, 2021. Defendant asserted that Rodriguez failed in her duty to collect evidence and that the prosecutor should have "noticed that there was a lot of evidence still missing." The prosecutor asserted that the People did not have the complete original surveillance video and that defendant "could just have easily subpoenaed the evidence [he] was looking for from the [business]."
The trial court found that Rodriguez met her duty to collect "evidence that [Rodriguez] believed to be necessary, pertinent, and . . . relevant." The trial court concluded that the prosecutor's failure to secure the original surveillance video was "a form of violation of Trombetta." However, the trial court determined that dismissal of the case as a remedy for that failure would be "too great and is not supported by the facts that occurred here." The court suggested that "a modified CALCRIM instruction may be given."
California v. Trombetta (1984) 467 U.S. 479.
Later, the prosecutor asked, "[I]f the defense wanted to get the video, couldn't the defense have subpoenaed those records[?]" The trial court responded, "Yeah, I imagine they could have." A modified instruction pertaining to the video was not given, but evidence was presented to the jury regarding Rodriguez's not obtaining the complete recording.
b. Analysis
Defendant contends the trial court erred by not finding that "Rodriguez should have made an attempt shortly after the day of the incident to collect all of the surveillance video she watched."
Under California v. Trombetta, supra, 467 U.S. at pages 488 and 489, "law enforcement officers have a duty to preserve exculpatory or potentially exculpatory evidence in their possession[. However,] 'due process does not require the police to collect particular items of evidence. [Citation.] "The police cannot be expected to 'gather up everything which might eventually prove useful to the defense.'" '" (People v. Fultz (2021) 69 Cal.App.5th 395, 425.)
A criminal defendant may obtain recordings in the possession of third parties by requesting the owner of the recording give the recording to the defense (§ 1326, subd. (e)) or by a subpoena deuces tecum (§1326, subd. (d); Facebook, Inc. v. Superior Court (2020) 10 Cal.5th 329, 343-344). Because a criminal defendant can obtain his own evidence," 'the prosecution has no general duty to seek out [and] obtain . . . all evidence that might be beneficial to the defense.'" (People v. Jordan (2003) 108 Cal.App.4th 349, 361.) One exception to that general no-duty rule pertains to information that is accessible to the prosecutor, but inaccessible to the defendant. (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1318-1319 [disapproved on another point in Facebook, Inc. v. Superior Court, supra, 10 Cal.5th at p. 345, fn. 6].)
If defendant felt the complete original surveillance video would have been useful to his case, then defendant needed to ask Owner for the video. It is possible that Owner would have given the defense a copy of the video without a subpoena because Owner did not appear antagonistic toward defendant. For example, Owner declined to seek restitution. If Owner refused, then defendant needed to use a subpoena. Because defendant could have obtained the video by asking Owner or via a subpoena, the prosecution did not have a duty to obtain the video for the defense. The trial court did not err.
2. OFFICERS' LATE STATEMENTS
a. Procedural History
Heidrich is the officer who located defendant after the fire. Heidrich was in an unmarked police vehicle at the time, so he let dispatch know that he found the person that matched the arsonist's description. Heidrich waited in his vehicle for officers in marked patrol vehicles to arrive. Rodriguez and Beaumont Police Officer Orendain (Orendain) arrived, and Heidrich exited his vehicle. Defendant did not cooperate when Orendain tried to detain defendant. Heidrich assisted Orendain with placing defendant in handcuffs.
Prior to trial, defendant asked for offers of proof as to "what these actual officers are going to say" because Heidrich and Orendain were not explicitly mentioned in Rodriguez's police report. The trial court asked the prosecutor why no one obtained written statements from Heidrich and Orendain. During a recess, the prosecutor directed Heidrich and Orendain to start drafting police reports about the arrest.
After the jury was selected, defendant received Orendain's report. In the report, Orendain revealed that, at 9:33 a.m. on the day of the fire, he conducted a traffic stop. During the stop, Orendain saw defendant wearing a camouflage jacket and riding a bicycle near the business. Then, after the traffic stop, Orendain saw defendant in front of the business. Defendant asserted all of the evidence about Orendain seeing defendant before the fire should be excluded due to the late disclosure.
The trial court found the prosecutor violated the disclosure law. (§ 1054.1, subd. (f).) The court gave defendant two options: (1) give the jury an instruction about the late disclosure of Orendain's and Heidrich's reports, or (2) declare a mistrial to "give [defendant] more time." The trial court said it would not dismiss the case or exclude the evidence.
Defendant said he was missing necessary evidence, such as a Pitchess motion pertaining to Orendain's credibility; a recording of police radio traffic to confirm Orendain's traffic stop; and a recording from Orendain's body camera. Defendant asserted the prosecutor put him "in the position of choosing between [his] speedy trial right and the [right of] effective cross-examination." Defendant noted that any continuance would not be brief because, in Riverside County, defendants have been "waiting a year to go to trial."
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Ultimately, defendant chose the instruction option but requested that Orendain not be permitted to testify until the following day, so defendant could hopefully obtain Orendain's body camera recording and Orendain's computer-aided dispatch (CAD) log. The court agreed to delay Orendain's testimony to the following day. The trial court gave the jury an instruction regarding the late discovery as it pertained to Orendain's and Heidrich's reports.
b. Analysis
Defendant does not argue that the trial court erred by finding a discovery violation or in the remedy provided. Rather, the discovery violation is a piece of defendant's larger cumulative effect contention based on the prosecutor "mak[ing] misstep after misstep." Accordingly, we present only the facts pertaining to the discovery violation ante; we do not provide a separate analysis of that issue.
3. BURDEN OF PROOF
a. Procedural History
During closing argument, the following was said:
Prosecutor: "He is also guilty of Count 1 and the allegation beyond a reasonable doubt because that's the only reasonable conclusion, and you all agreed that you would be here and take your oath seriously and accept only reasonable conclusions.
"[Defense Counsel]: Your Honor, I'm going to object to misstating the law. Are we talking about circumstantial evidence or beyond a reasonable doubt?
"The Court: Ladies and gentlemen, the burden of proof beyond a reasonable doubt applies at all times and to all circumstances.
"[Prosecutor]: Of course. [¶] And what is in 'beyond a reasonable doubt'? The word 'reasonable.'
" During the rebuttal closing argument, the following was said:
Prosecutor: "All I'm asking for you to do is find the only one verdict that you can have, because that's the only reasonable conclusion based on the evidence presented to this Court.
"[Defense Counsel]: Objection. Misstates [the] burden of proof.
"The Court: No. He's telling them that in his opinion, the evidence shows beyond a reasonable doubt. [sic] That doesn't misstate it.
"[Defense Counsel]: He said 'reasonable conclusion.'
"The Court: Ladies and gentlemen, I read you the proof beyond a reasonable doubt instruction. That's the law you follow."
b. Analysis
"The standard of proof is a measure of the jury's level of confidence. It is not sufficient that the jury simply believe that a conclusion is reasonable. It must be convinced that all necessary facts have been proven beyond a reasonable doubt." (People v. Centeno (2014) 60 Cal.4th 659, 672.) Thus, "it is error for the prosecutor to suggest that a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof." (Ibid.)
In the instant case the prosecutor argued that guilt was the only reasonable conclusion. When guilt is the only reasonable conclusion, then the beyond a reasonable doubt standard is satisfied because anything other than a guilty verdict would be unreasonable. Accordingly, the prosecutor did not misstate the standard of proof.
4. DUE PROCESS
Defendant contends the foregoing three issues-the incomplete surveillance video, the late discovery, and the misstatements of the standard of proof-cumulatively caused a denial of due process.
"Cumulative error is present when the combined effect of the trial court's errors is prejudicial or harmful to the defendant. [Citations.] Although a defendant is entitled to a fair trial, he or she is not entitled to 'a perfect one.'" (People v. Capers (2019) 7 Cal.5th 989, 1017.)
The incomplete surveillance video could have been cured by defense counsel subpoenaing the recording from the business. The late discovery was mostly cured by the delay in Orendain's testimony, which gave defense counsel time to prepare for an effective cross-examination. The prosecutor did not misstate the standard of proof. Defendant's trial was imperfect, but it was not unfair. Therefore, defendant's state and federal rights of due process were not violated.
B. CONDITION SEVEN
1. PROCEDURAL HISTORY
On November 1, 2021, the trial court granted defendant two years of formal probation. Condition Seven of defendant's probation requires that defendant participate in and complete "any counseling, rehabilitation/treatment program deemed appropriate by [his] probation officer."
2. ANALYSIS
Defendant asserts Condition Seven is improper because it is unconstitutionally vague. We apply the de novo standard of review. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
The People contend defendant forfeited this issue by failing to object in the trial court. Defendant's contention that Condition Seven is "facially vague and overbroad presents an asserted error that is a pure question of law." (In re Sheena K. (2007) 40 Cal.4th 875, 888.) Accordingly, "we conclude defendant's claim that h[is] probation condition [i]s unconstitutionally vague and overbroad was not forfeited by h[is] failure to raise it in [the trial] court." (Id. at p. 889.).
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.'" (In re Sheena K. (2007) 40 Cal.4th 875, 890.) "A vague law 'not only fails to provide adequate notice to those who must observe its strictures, but also "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." '" (Ibid.) "A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness." (Ibid.) Thus, the trial court must provide sufficient specificity in a probation condition for the probationer to know what is expected of him.
However, "the trial court is poorly equipped to micromanage selection of a program, both because it lacks the ability to remain apprised of currently available programs and, more fundamentally, because entry into a particular program may depend on mercurial questions of timing and availability." (People v. Penoli (1996) 46 Cal.App.4th 298, 308.) Accordingly, there must be a middle ground between a condition that provides little information and one that is impossibly specific. That middle ground is the trial court identifying the type of treatment program, e.g., substance abuse treatment, mental health treatment, domestic violence treatment, et cetera. (Id. at pp. 308-310.) Condition Seven does not identify the type of treatment program in which defendant may need to participate. Therefore, Condition Seven is impermissibly vague.
The People contend Condition Seven is not vague because one can determine from context, by reading the reporter's transcript and the probation report, what program(s) the trial court determined were necessary. The reporter's transcript provides the following comment by the trial court, "I think if you take his mental health history, primarily substance abuse history, I think-it appears to me substance abuse is the driver, as opposed to him having a true mental disorder being exacerbated by substance abuse. You can look at that and get it mitigated."
The probation report provides, "[A] few years ago while serving jail time, [defendant] was diagnosed with a mental health disorder and given medication. He did not recall his diagnosis and he never followed up or picked up his medication. He stated he realized he might need medication since he did not feel 'normal' without using drugs."
In reading the probation report and the reporter's transcript, it is unclear to us if defendant is supposed to participate in a substance abuse treatment program and/or a mental health treatment program. Therefore, we reject the People's argument. We will direct the trial court to modify Condition Seven by specifically identifying the type of treatment program(s).
DISPOSITION
The trial court is directed (1) to modify probation condition number seven by either specifically identifying the type of treatment program(s) or striking the condition, and; (2) to correct the sentencing minute order to reflect probation is to last 24 months. In all other respects, the judgment is affirmed.
We concur: CODRINGTON J., MENETREZ J.