Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. TA082547, Paul A. Bacigalupo, Judge
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant Marvin Clay.
Jeffrey Lewis, under appointment by the Court of Appeal, for Defendant and Appellant Deandre Hemphill.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Beverly K. Falk, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellants Marvin Clay and Deandre Hemphill appeal their convictions by jury. Clay was convicted one count of robbery (Pen. Code § 211), and the jury found true an allegation that he personally used a firearm. (§ 12022.53, subd. (b).) Hemphill was convicted by the same jury of two counts of robbery. On the first count, the jury found true an allegation against Hemphill that his co-defendant was armed with a firearm. (§ 12022, subd. (a)(1).) The trial court found true allegations that Hemphill had served two prior prison terms for felony convictions. (§ 667.5, subd. (b).)
All statutory references are to the Penal code unless otherwise stated.
The trial court sentenced Clay to a total of 13 years in state prison consisting of a 3-year middle term for the robbery count plus 10 years for use of the firearm. (§§ 211 & 12022.53, subd. (b).) The trial court sentenced Hemphill to a total prison term of 9 years consisting of a 5-year upper term for the first robbery count, an additional one-year based on his co-defendant's use of a firearm, a consecutive one-year term for the second robbery count (one-third the middle term), and two one-year terms for the two prior prison terms. (§ 667.5, subd. (b).)
Clay contends 1) that the trial court erred when it summarily denied his motion for in camera review of peace officer personnel records (Pitchess v. Superior Court (1974) 11 Cal.3d 531) and 2) that his counsel rendered ineffective assistance because she did not request a modified jury instruction regarding eyewitness identification. We agree with Clay's first contention, and conditionally reverse and remand for further proceedings as to Clay only.
Hemphill challenges his sentence on the ground that imposition of the upper term sentence and imposition of consecutive terms violated his constitutional right to a jury trial. We affirm as to Hemphill.
FACTS
Clay and Hemphill were charged with committing a robbery in a liquor store on November 25, 2005, at about 8:45 a.m. An accomplice, Anderson, was tried separately.
Los Angeles Sheriff's Deputy Donovan Gabeddon responded to the scene of the robbery. Gabeddon interviewed victims J. Chung and E. Aguilera. Chung described the suspects as two Black males and one Hispanic male. Chung said that the suspects entered the store just after he opened for business. He said one Black male went the rear of the store. The other Black male stayed in front and pointed a handgun at Chung. The Hispanic male jumped over the counter and took money from the cash register and from under the counter. Chung told Gabeddon that he could identify the two suspects that stayed at the front of the store.
Aguilera told Gabeddon that he was working in the back of the store when one Black male came back and pointed a small gun at him, told him to get on the ground, took his wallet and ran to the front of the store. Aguilera described this suspect as 18 to 20 years old, wearing a blue shirt, having a medium build and wearing braids. Chung told Gabeddon that all three suspects left in a black older model Acura Legend with tinted windows and a license place that included the letters "HW."
After interviewing the witnesses, Gabeddon put out a crime broadcast. Sheriff's Deputy Jesus Rojas responded. Rojas told Gabeddon that at 7:54 that morning Rojas and Deputy Maldonado had stopped a Black four door Acura Legend, license plate number 5HWY866, and that two Black males and one Hispanic male were inside. Rojas identified one occupant as Marvin Clay and described him as heavy set and wearing a white T-shirt. Rojas identified another occupant as Deandre Hemphill and described him as wearing a white T-shirt and braids. Rojas did not identify the third occupant to Gabeddon, but described him as very light skinned with a thin mustache. More detailed descriptions appeared on field interview cards prepared by Deputies Rojas and Maldonado concerning their contacts that morning. Rojas told Gabeddon that earlier on the same morning, he had seen Hemphill walk up to Clay, who was sitting in the driver's seat of an older model car. Rojas was familiar with both individuals from prior contacts.
The field interview cards described Clay as a black male born in 1983, six feet tall, weighing 240 pounds, wearing a T-shirt and blue jeans, with shoulder length hair braided, a dark complexion, and a goatee and mustache. Hemphill was described as a black male born in 1982, five feet six inches tall and weighing 150 pounds, with a dark complexion, wearing a white T-shirt and pajamas, with shoulder length hair in braids, a goatee and a mustache. Anderson was described as the driver and as a black male born in 1983, five feet six inches tall and weighing 135 pounds, wearing a T-shirt and gray pants.
Chung identified Clay from the second photographic "six-pack" line-up that Chung was shown. Chung stated that Clay was the robber who pointed a gun at him. Chung did not identify Clay in the first six-pack he was shown, although Clay's photograph was included. Aguilera identified Hemphill from a photographic six-pack as the robber who came to the back of the store. Hemphill eventually confessed to the robbery, but denied using a gun.
A security surveillance camera recorded the robbery, and still photographs from the video were shown at trial. The photographs did not show the face of the person who pointed the gun at Chung. Chung testified at trial that that person wore a hood and Chung could only see an inch above his eyebrows and a little bit of his chin.
Clay presented expert testimony at trial about problems with eyewitness identification. Clay's sister testified that she was in Texas on the day of the robbery and had asked her brother to move her car so she would not get a parking ticket. Clay's father testified that before the preliminary hearing he saw a detective speaking with Chung. He said Chung told the detective that none of the men in a six-pack of photos looked like the robber. The detective then pointed at appellant's photo and said, "There he is right there."
DISCUSSION
Clay's Pitchess Motion
Clay contends that the court erred when it denied his pretrial motion for in camera review of the personnel records of Deputy Rojas. (Pitchess v. Superior Court, supra, 11 Cal.3d 531; Evid. Code, §§ 1043-1045.) We agree that Clay presented good cause for in camera review and that the court abused its discretion when it summarily denied his motion. We are unable to determine whether Clay was prejudiced by the error. Accordingly, we reverse and remand to give Clay an opportunity to demonstrate whether he would have been able to present additional evidence at trial as a result of any discoverable information. (People v. Hustead (1999) 74 Cal.App.4th 410, 422-423.)
Clay sought evidence of citizen complaints against Rojas and Maldonado concerning false arrest, planting evidence, fabrication or false testimony. In support of the motion, Clay's counsel declared that Clay was never in the car that Rojas stopped. Counsel asserted that Rojas's statements to the contrary were false, as were the field interview cards completed by Rojas and Maldonado. At the hearing, the city attorney argued against production of Maldonado's records. The trial court denied the Pitchess motion as to both deputies. Clay challenges the ruling only with respect to Rojas. The court found that the allegations of misconduct against Rojas were not sufficiently plausible because Clay had been identified by independent witnesses.
We review for abuse of discretion. (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 535.) To prevail on a Pitchess motion, the defendant must show good cause for discovery by demonstrating that 1) the information to be discovered is material to the pending litigation, and 2) the defendant has a reasonable belief that the governmental agency has the type of information sought. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016; City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83; Evid. Code, § 1043, subd. (b)(3).) Materiality is a very low threshold requiring "'a specific factual scenario'" to support the defendant's claim and ""a plausible factual foundation"" for the allegation. (Warrick, at p. 1020.)
The facts presented in counsel's affidavit were specific and plausible. Clay's counsel alleged "specific police misconduct that [was] both internally consistent and support[ed] the defense proposed to the charges." (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1026.) Counsel declared, "The defense expects to establish that Mr. Clay was never in the car that officer Rojas stopped. The defense expects to establish that Mr. Clay left an apartment to move a family member's car, a Chevy Caprice. As Mr. Clay was exiting that car he was stopped by Deputy Rojas and his partner Deputy Maldonado. Mr. Clay was detained and his information was taken. Shortly before the officers approached Mr. Clay, he observed them detain Mr. Hemphill as he was walking down the street and place Mr. Hemphill in the rear of the patrol car. Mr. Clay was at no time with Mr. Hemphill or Mr. Anderson. Mr. Clay was not in the Acura at anytime. Mr. Clay was released by the officers and shortly thereafter left the location (along with Passenger) in the Chevy Caprice. The statement of Deputy Rojas to Officer Gabbedon [sic] and Detective Orpe indicating Mr. Clay was in the car are false. The field identification car[d]s which list both Deputy Rojas and Maldonado, which indicate Mr. Clay was a passenger in the Acura are also false. The defense expects to establish that Mr. Clay was not involved in the robbery. Further, at no time was Mr. Clay in the car with or associating with Mr. Hemphill or Mr. Anderson. Any assertions by Deputy Rojas to the contrary are false."
This scenario was not rendered implausible by independent eyewitness identification. Chung and Aguilera did not witness the detention of the Acura at 7:54 a.m., and could not identify its occupants.
Clay submitted all necessary peace officer reports in support of his motion. He was not required to submit copies of all post-arrest statements. Clay has also presented an adequate record on appeal. Exclusion of an opposition brief that was filed in the lower court by the sheriff's department did not inhibit our review.
Clay's Claim of Ineffective Assistance of Counsel
Clay contends that his trial counsel rendered ineffective assistance because she did not request expansion of the standard CALJIC jury instruction concerning eyewitness identification, that "would have keyed jurors toward Dr. Eisen's testimony." We disagree.
A defendant claiming ineffective assistance of counsel must establish that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that there is a reasonable probability that the outcome would have been different absent counsel's ineffective representation. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
Clay's counsel competently presented the identification issue to the jury, and the instructions given were adequate. Using CALJIC 2.92 as a model, the trial court instructed the jury to consider specific factors when determining the weight to be given to an eyewitness' identification. Clay's trial counsel presented detailed expert testimony about factors that can impact the accuracy of eyewitness identification and the jury was instructed to consider all evidence relating to a witness' ability to make an identification. The trial judge appropriately instructed the jury regarding expert witness testimony. In closing argument, Clay's counsel reviewed these factors and argued that Chung's identification was not reliable and was the result of the detective's suggestive behavior. Under prevailing professional norms, counsel's performance was reasonable.
Hemphill's Upper Term and Consecutive Sentences
Imposition of the upper term did not violate Hemphill's Sixth Amendment right to a jury trial because at least one aggravating circumstance was established by his record of prior convictions. (People v. Black (2007) 41 Cal.4th 799, 816.) Numerous or increasingly serious prior adult convictions warrant imposition of the upper term. (Cal. Rules of Court, rule 4.421(b)(2).) Hemphill suffered numerous and serious prior convictions. In 1997 and 1998, juvenile petitions were sustained against him for taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)) and petty theft (§ 484, subd. (a)). As an adult, Hemphill was convicted in 2001 of taking a vehicle without the owner's consent and evading pursuing officers (Veh. Code, §§ 10851, subd. (a) & 2800.2, subd. (a)), and again in 2005 of taking a vehicle without the owner's consent. He was 22 years old and had been on parole for about 45 days when he committed the instant offenses.
Imposition of consecutive sentences did not violate Hemphill's right to a jury trial. Imposition of consecutive terms does not implicate a defendant's right to a jury trial. (People v. Black, supra, 41 Cal.4th at p. 821.)
The judgment is affirmed as to Hemphill.
The judgment is conditionally reversed as to Clay and the cause is remanded with directions to the trial court to conduct an in camera hearing on Clay's Pitchess motion. If the hearing reveals no discoverable information in Deputy Rojas or Deputy Maldonado's personnel files which would lead to admissible evidence helpful to Clay's defense, the trial court shall reinstate Clay's original judgment and sentence which shall stand affirmed. If the in camera hearing reveals discoverable information concerning false arrest, planting evidence, fabrication or false testimony which could lead to admissible evidence helpful to Clay in defense of the charges, the trial court shall grant the requested discovery, allow appellant an opportunity to demonstrate prejudice, and order a new trial if prejudice is demonstrated.
We concur: GILBERT, P.J., PERREN, J.