Opinion
F073367
04-20-2018
THE PEOPLE, Plaintiff and Respondent, v. TONY CURTIS, Defendant and Appellant.
Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CM7263)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
This appeal arises from the trial court's denial of a motion to dismiss criminal charges as a sanction for governmental misconduct. Following an in-prison incident, defendant Tony Curtis was charged by amended information with assault with a deadly weapon by a prisoner (Pen. Code, § 4501, subd. (a)) (count 1) and possession or manufacture of a weapon by a prisoner (§ 4502, subd. (a)) (count 2). The amended information further alleged defendant had four prior serious or violent felony convictions within the meaning of the Three Strikes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
All further statutory references are to the Penal Code.
The information was amended to correct an error as to count 1.
Prior to the pretrial conference and preliminary hearing, the trial court granted defendant's motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806, 807 (Faretta). Defendant thereafter filed a motion to disqualify the Kings County District Attorney's Office. Several weeks later, defendant filed a motion seeking the return of his legal property, which had been confiscated by prison officials. Several weeks after that, defendant filed a motion to dismiss the charges against him based on governmental misconduct related to the confiscation and review of his confidential legal material by prison officials. Following a hearing, the trial court ordered defendant to file a declaration under seal with respect to his motion to disqualify the district attorney's office and denied the motion to dismiss. The court subsequently denied the disqualification motion.
Thereafter, pursuant to a negotiated plea deal, the prosecutor amended the information to add a charge of resisting an executive officer by means of threat or violence (§ 69) (count 3). Defendant pled no contest to count 3 and the prosecutor moved to dismiss the prior strike allegations. The trial court sentenced defendant to a term of eight months (one-third of the middle term), to be served consecutively to terms previously imposed in two separate cases. Defendant filed a notice of appeal and obtained a certificate of probable cause.
Los Angeles Superior Court case No. YA035642-01 and Kings Superior Court case No. 14CM7171.
On appeal, defendant claims the trial court abused its discretion in denying his motion to dismiss the charges against him for governmental misconduct. He seeks reversal of the decision and dismissal of the charges. The People contend defendant's appeal is barred because he waived his right to appeal as part of the plea bargain and they dispute his entitlement to relief on the merits of his claim.
We find the denial of defendant's motion to dismiss was not an abuse of discretion and we affirm the judgment. In light of this disposition, we need not determine whether defendant's waiver of his appellate rights was valid or whether, as he claims, the trial court impermissibly inserted itself in the parties' plea negotiations.
DISCUSSION
I. Motion to Dismiss Charges Based on Governmental Misconduct
A. Background
As set forth above, after the trial court granted defendant's Faretta motion, he filed a motion to disqualify the Kings County District Attorney's Office on the ground that Keith Fagundes, prior to his election as district attorney, represented defendant in Kings Superior Court case No. 14CM7171. The next day, defendant's property was removed from his cell and packed for transportation by a correctional officer. Several days later, defendant was told he was not going to be transferred to another facility. He was later informed his property had been shipped, however. The property was eventually located at Centinela State Prison and he was told to file an inmate appeal regarding the issue. Defendant thereafter filed a motion with the trial court seeking an order directing the return of his property. He subsequently received his property back, clearly sorted through.
Following a continuance of the disqualification motion, the disqualification motion and the property motion were set for hearing. Approximately one week before the hearing and after he received his property back, defendant filed a motion to dismiss the charges against him based on governmental misconduct. Defendant claimed employees of the California Department of Corrections and Rehabilitation violated his constitutional due process right to a fair trial when they seized his confidential legal property and searched it. Defendant contended that when his legal work was returned to him, documents had been removed from folders and envelopes and put back out of order. He also contended he could not be certain all of his legal work was returned. Defendant stated in the motion, "Although [defendant] cannot identify with specificity what extent the privileged material has been disseminated, or to whom the information may have been disclosed, it was definitely tainted. [Defendant] should not have to wait to be ambushed in front of the jury by interested parties as witnesses, to seek relief from this egregious action by government officials."
Defendant identified section 1385.5 as the statutory basis for his motion. The trial court noted that section 1385.5 is nonexistent; section 1538.5, which governs motions seeking the return of property or suppression of evidence, was inapplicable; and section 1385, which permits dismissal in furtherance of justice, empowers the court and the prosecutor to move for dismissal.
During the hearing on the motion, defendant argued that prison officials' actions interfered with his Sixth Amendment right to represent himself and deprived him of a fair trial. After being sworn in, defendant testified as follows:
"[T]he order of the paperwork was changed, and in that paperwork was information related to the defense, witnesses that I was hoping to talk to, questions I would have for potential prosecution witnesses, stuff that I—notes I had wrote about the case, you know, different stuff like that, and the [section] 987.2 motions that I had filed, you know, different documents relating to that.
"So I don't know to what extent that information got out, but I know that on the 5th of November Counselor Kauffman came to my door and asked me about an investigator in my case. 'Why are you having a private investigator?' or something to that effect, and I'm like, what does that have to do—why would she know about that? I haven't talked to her about the case at all.
"So there is a concern that this information has got out amongst the staff at least. I don't know how far it's went as far as the prosecutor or if they had any involvement, but there's no way for me to know, but the government interference did happen, your Honor, and there was an instruction into that work product privilege. And that would be all I would have to say under oath."
The People elected to oppose the motion orally at the hearing. The prosecutor responded that the People did not have authority or influence over prison officials with respect to prison procedures and prison management, but other than the discovery they previously provided to defendant's standby counsel, they had no other legal material pertaining to the case.
The court subsequently denied defendant's motion to dismiss, finding, "Without more, it does not appear that Defendant has been prejudiced by his delayed receipt of legal documents. In regards to his claim that his legal property may have been improperly reviewed/disclosed by California Department of Corrections and Rehabilitation staff, Defendant may file a new motion if he continues to experience such issues." (Fn. omitted.)
B. Standard of Review
As discussed next, trial courts have the authority under federal and state law to dismiss an action for egregious government misconduct. (E.g., People v. Velasco-Palacios (2015) 235 Cal.App.4th 439, 444-445 (Velasco-Palacios).) On appeal, we review the trial court's ruling on a motion to dismiss as a sanction for governmental misconduct for abuse of discretion, which "occurs when the lower court acts 'in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice.'" (Id. at p. 445.) "[W]e presume that a judgment or order of the trial court is correct, '"[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown."'" (People v. Giordano (2007) 42 Cal.4th 644, 666.)
C. Analysis
1. Waiver of Appellate Rights
There was no written plea agreement in this case, but the trial court went over the terms of the plea agreement and defendant orally waived his right to appeal. (People v. Panizzon (1996) 13 Cal.4th 68, 80.) Defendant argues, however, that his waiver was not knowing, intelligent and voluntary (ibid.), and it was the product of the trial court's impermissible engagement in plea bargain negotiations (People v. Clancey (2013) 56 Cal.4th 562, 569-570, 573; People v. Segura (2008) 44 Cal.4th 921, 931-932; People v. Orin (1975) 13 Cal.3d 937, 943). The People disagree and contend the record does not support defendant's arguments. Given our conclusion that the trial court did not abuse its discretion in denying defendant's motion to dismiss, we need not determine whether defendant's waiver of his appellate rights was valid.
2. No Showing of Misconduct Imputable to Prosecutor
It has long been recognized that courts are empowered to dismiss a criminal case where outrageous conduct by governmental actors prejudices a defendant's constitutional rights. (People v. Delgado (2017) 2 Cal.5th 544, 561 (Delgado) [rejecting claim of structural error where the defendant asserted Sixth Amendment violation based on presence of correctional officers during attorney-client meetings]; People v. Ervine (2009) 47 Cal.4th 745, 766-767 (Ervine) [rejecting constitutional claims where jail personnel searched the defendant's cell and read his notes relating to his defense preparation]; Barber v. Municipal Court (1979) 24 Cal.3d 742, 759-760 [dismissal of charges only effective remedy where law enforcement agent intruded in confidential attorney-client conferences]; Velasco-Palacios, supra, 235 Cal.App.4th at pp. 444-446 [dismissal appropriate where prosecutor inserted false confession in transcript of the defendant's statement to police]; Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, 1259 (Morrow) [due process clause of the United States Constitution empowers courts to dismiss a criminal case for outrageous conduct by governmental actors]; Boulas v. Superior Court (1986) 188 Cal.App.3d 422, 432-435 (Boulas) [government intentionally interfered in attorney-client relationship]; People v. Moore (1976) 57 Cal.App.3d 437, 441-442 (Moore) [prosecution's active interference with attorney-client privilege violated the defendant's right to due process and justified dismissal of charges].) To justify the imposition of sanctions, the misconduct must violate a defendant's rights and result in prejudice. (United States v. Morrison (1981) 449 U.S. 361, 365-367; Delgado, supra, at pp. 567-568; People v. Alexander (2010) 49 Cal.4th 846, 896-897 (Alexander); Ervine, supra, at pp. 770-771; People v. Zapien (1993) 4 Cal.4th 929, 966-967; Velasco-Palacios, supra, at pp. 446, 449-450; People v. Glover (1985) 169 Cal.App.3d 689, 699-700) Necessarily, "[e]ach case must be decided on its own facts." (Morrow, supra, at p. 1263, fn. 4.)
In this case, defendant claims prison officials' inspection of his confidential legal material violated his right to self-representation under the Sixth Amendment. Conclusory assertions do not suffice to support a claim, and the California Supreme Court has explained that in the absence of "'"at least a realistic possibility of injury to [the defendant] or benefit to the State, there can be no Sixth Amendment violation."'" (Delgado, supra, 2 Cal.5th at p. 561, quoting Alexander, supra, 49 Cal.4th at p. 888.)
Here, the record is devoid of any showing that the prosecutor was involved in the confiscation and review of defendant's confidential legal material or otherwise privy to any information that might have been gleaned from the material. (Alexander, supra, 49 Cal.4th at pp. 888-889; Ervine, supra, 47 Cal.4th at pp. 766-767.) Defendant testified that a counselor at the prison questioned him about why he was hiring an investigator, indicating information in his confidential legal material had been read and shared. However, assuming prison officials obtained confidential information relating to this case through inspection of his legal material, defendant points to no evidence that any information was conveyed to the prosecutor. To the contrary, defendant conceded he did not know whether any confidential information was communicated to the prosecutor and, therefore, any contrary assertion is purely speculative. (Alexander, supra, at pp. 888-889; Ervine, supra, at pp. 766-767.)
Defendant also points out that the confiscation of his legal material occurred one day after he filed a motion to recuse the district attorney's office and because the underlying offenses occurred in prison, prison officials and other inmates would be witnesses at trial. The California Supreme Court rejected similar attenuated reasoning in Ervine. As in this case, the defendant in Ervine claimed his Sixth Amendment rights were violated when jail personnel searched his cell and read his confidential case-related material. (Ervine, supra, 47 Cal.4th at pp. 763-764.) The Court explained, "We have already recognized that '"information possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team"' with respect to the prosecution's duty to disclose exculpatory information under the federal Constitution and state discovery rules. [Citation.] Similarly, we find that misconduct by a government agent who has no involvement in the investigation or prosecution of the criminal charge against the defendant cannot automatically be imputed to the prosecution team for purposes of the Sixth Amendment. [Citation.] Whatever civil remedy [the] defendant may have had against the culpable members of the Sacramento County Sheriff's Department, it seems plain that, in the absence of evidence that confidential information was actually conveyed to the prosecution team, [the] defendant has no claim that his Sixth Amendment rights were violated." (Id. at p. 768.)
Defendant is obligated to make the record supporting his contention that governmental misconduct attributable to the prosecutor occurred when prison officials searched his cell and inspected his legal material. (Ervine, supra, 47 Cal.4th at pp. 766-767; accord, Alexander, supra, 49 Cal.4th at pp. 888-889.) He has not done so and to the extent prison officials engaged in misconduct, that misconduct may not be automatically imputed to the prosecutor. (Ervine, supra, at p. 768.) Given defendant's failure to show a violation of his constitutional rights by the prosecution team, his constitutional claim of governmental misconduct fails and the trial court did not abuse its discretion in denying his motion to dismiss the charges. (Weatherford v. Bursey (1977) 429 U.S. 545, 556 ["As long as the information possessed by [the uncover agent] remained uncommunicated, he posed no substantial threat to [the defendant's] Sixth Amendment rights."]; Ervine, supra, at pp. 766-770.)
We note defendant argues we should deem forfeited any assertion by the People that he failed to show the information was conveyed to the prosecutor, because the prosecutor did not raise it below and the trial court did not consider it. Citing Weatherford v. Bursey and Ervine, defendant points out that unlike in those cases, here the trial court did not make a finding whether the information was communicated to the prosecutor and prison officials in this case were "intimately involved in his prosecution ...." We do not agree. While the prosecutor did not belabor that point, he stated for the record that he had no information other than that which he had already disclosed to the defense in discovery. Moreover, defendant's argument overlooks the fact that it is "the duty of the defense to establish, as part of its prima facie case, that confidential information was actually communicated to the prosecution team." (Ervine, supra, 47 Cal.4th at p. 766; accord, Alexander, supra, 49 Cal.4th at pp. 888-889.) Furthermore, the lack of any express finding by the trial court is of no assistance to defendant; "'we review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm.'" (People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11; accord, People v. Brooks (2017) 3 Cal.5th 1, 39.)
In Ervine, the misconduct by sheriff's deputies occurred in the Sacramento County Jail while the criminal case against the defendant was prosecuted by a team from Lassen County. (Ervine, supra, 47 Cal.4th at pp. 763-764.) During oral argument in this case, defendant's counsel distinguished Ervine on the basis that here, there existed a close connection between the district attorney's office and prison officials by virtue of their shared location in Kings County, and prison officials' involvement in investigating the crimes defendant was accused of and as potential witnesses for the prosecution. Counsel suggested that in situations with a close connection between the prosecutor and the officials accused of misconduct, a presumption that confidential information was communicated attaches or should attach. Defendant cited no authority for this proposition and the California Supreme Court rejected a very similar argument in Delgado, which also involved an inmate incarcerated in Kings County and prosecuted by the Kings County District Attorney's Office. (Delgado, supra, 2 Cal.5th at p. 552.)
The defendant in Delgado focused on the relationship between prison officials and the prosecution team. (Delgado, supra, 2 Cal.5th at p. 563.) The court acknowledged the tangential relationship between the agencies in Ervine did not require it to determine "what degree of association would be sufficient to establish a Sixth Amendment violation based on receipt of confidential attorney-client information by a government actor other than the prosecutor." (Id. at p. 564.) The court pointed out, however, that the United States Supreme Court spoke to that issue in Weatherly. (Delgado, supra, at p. 564.) Relying on Weatherly, the Delgado court rejected the defendant's argument and concluded he had made no showing that "receipt of confidential information by persons other than the prosecutor resulted in testimony or other evidence against the defendant." (Delgado, supra, at p. 564.)
Delgado forecloses the relationship-based argument advanced by defendant in this case, and as set forth in our opinion, defendant makes no showing that any confidential information obtained by prison officials was communicated to the prosecutor or that any harm resulted from the asserted obtainment of the confidential information.
3. No Demonstrable Prejudice
With respect to prejudice, defendant argues the trial court "overlooked the profound prejudice [he] suffered when prison authorities inspected the legal papers outlining how he planned to defend himself against the charges." He contends "[t]he inspection of his work product by governmental agents raised a 'substantial threat of demonstrable prejudice' [citation], and severely interfer[ed] with his ability to receive a fair trial, because the prosecution already knew ... what questions he was going to ask potential witnesses." Defendant's argument is flawed. First, the argument presupposes a showing that prison officials not only obtained confidential information relating to his defense, as defendant asserts, but also that they communicated such information to the prosecutor. As we have explained, no such showing was made and we decline defendant's invitation to deem the issue forfeited.
In addition, defendant does nothing more than baldly assert, without adequate specifics or support, that he suffered prejudice with respect to his defense. (See People v. Zapien, supra, 4 Cal.4th at pp. 966-968; People v. Glover, supra, 169 Cal.App.3d at pp. 699-700.) His argument that he was more severely prejudiced than the criminal defendants in Velasco-Palacios, Morrow, Boulas and Moore is simply untenable. In Velasco-Palacios, the prosecutor altered the transcript of the defendant's statement to police by inserting a false confession, which "severed the trust in [the] defendant's attorney-client relationship, necessitated [the] defendant waiving his attorney-client privilege, and led to the removal of counsel that [the] defendant was comfortable with." (Velasco-Palacios, supra, 235 Cal.App.4th at p. 449.) We recognized dismissal was appropriate not only to vindicate the defendant's rights but to deter governmental misconduct. (Id. at p. 451.)
In Morrow, the prosecutor directed her investigator to eavesdrop in the courtroom on a privileged attorney-client communication between defense counsel and the defendant. As a result, the prosecutor succeeded in acquiring confidential information. (Morrow, supra, 30 Cal.App.4th at pp. 1260-1261.) The appellate court found the misconduct conscience shocking and a violation of not only the Sixth Amendment but of due process under federal and state law. (Morrow, supra, at pp. 1259-1261.)
In Boulas, the prosecution destroyed the defendant's relationship with his retained attorney, took actions that caused the defendant to discharge his attorney, and directed the defendant to a specific attorney it deemed acceptable for him to hire. (Boulas, supra, 188 Cal.App.3d at pp. 425-427.) The defendant, who was under the impression leniency was forthcoming based on his cooperation with the district attorney's office, was subsequently left without counsel when the second attorney declined to take his case. (Id. at p. 428.) He was thereafter informed the district attorney's office was not interested in entering into a plea bargain with him. (Ibid.)
Finally, in Moore, the prosecution team actively interfered with the defendant's attorney-client relationship when it secretly arranged for him to act as an undercover informant, led him to believe his efforts would result in a favorable disposition of his criminal case, directed him to keep the arrangement from his attorney, and falsely informed him his attorney was inadequate and had been disbarred. (Moore, supra, 57 Cal.App.4th at pp. 439-442.) Here, in contrast with these and other governmental misconduct cases, no linkage has been shown between the asserted misconduct and the prosecution team, nor has any articulable prejudice been shown. Accordingly, we find no abuse of discretion in the denial of defendant's motion to dismiss and we affirm the trial court's ruling.
II. Abstract of Judgment
In a footnote in his opening brief, defendant noted the abstract of judgment in this case reflects he is serving an incompleted sentence of four years in Kings Superior Court case No. 14CM7171, in addition to his eight-month sentence in this case. During oral argument, defendant's counsel mentioned the footnote and stated the abstract of judgment requires correction to reflect defendant is serving an incompleted two-year sentence in case No. 14CM7171, as indicated by the trial court in this case, for a total aggregate term of two years eight months. (People v. Jones (2012) 54 Cal.4th 1, 89 ["When an abstract of judgment does not reflect the actual sentence imposed in the trial judge's verbal pronouncement, this court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties."].)
We note a correction was not requested in defendant's opening brief (W.S. v. S.T. (2018) 20 Cal.App.5th 132, 149, fn. 7 [issues not raised in opening brief deemed waived]); in any event, we disagree there is an error with respect to the sentence reflected in the abstract of judgment. We previously resolved defendant's appeal in Kings Superior Court case No. 14CM7171 and take judicial notice of the following documents in People v. Curtis, case no. F070969: the three-page case summary from proceedings held on December 4, 2014, the abstract of judgment filed on February 27, 2015, and this court's nonpublished opinion filed on October 13, 2016. As set forth therein, the trial court sentenced defendant to a term of two years, doubled to four years for defendant's prior strike conviction.
The parties were provided with notice and an opportunity to object, in accordance with Evidence Code sections 455 and 459. Neither party objected.
Although during sentencing in this case the trial judge stated defendant had been sentenced to two years in Kings Superior Court case No. 14CM7171, this statement did not accurately reflect the sentence previously imposed in case No. 14CM7171. As the abstract of judgment in this case correctly reflects defendant received a four-year sentence in case No. 14CM7171, there is no clerical error to correct. (People v. Jones, supra, 54 Cal.4th at p. 89.)
However, we observe the abstract of judgment in this case incorrectly reflects that in Kings Superior Court case No. 14CM7171, designated as count 1N in the abstract, defendant was sentenced to four years for violating section 4753.6. The correct section is 4573.6. We shall direct the trial court to issue an amended abstract of judgment correcting that error. (People v. Jones, supra, 54 Cal.4th at p. 89.)
DISPOSITION
The trial court is directed to issue an amended abstract of judgment reflecting that in Kings Superior Court case No. 14CM7171, defendant was convicted of violating Penal Code section 4573.6, and to serve a certified copy to the appropriate authorities. In all other respects, the judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SMITH, J.