Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. KA064344, Phillip Gutierrez, Judge.
Susan Cardine, 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, Victoria B. Wilson, and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Ralph Arthur Duarte appeals from the judgment entered following his conviction by jury of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)) with court findings that he suffered a prior felony narcotics conviction (Health & Saf. Code, § 11370.2, subd. (a)), two prior felony convictions (Pen. Code, § 667, subd. (d)), and two prior felony convictions for which he served separate prison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced him to prison for 11 years. We affirm the judgment.
This is appellant’s second appeal. His first resulted in our unpublished decision in People v. Duarte (Sept. 29, 2005, B174620) (Duarte I), discussed below.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that about 3:30 p.m. on November 24, 2003, undercover Los Angeles County Sheriff’s Deputies Jose Garcia and Eric Barron, partners in a special enforcement team, drove to a La Puente bar. Undercover Los Angeles County Sheriff’s Deputies Charles McDaniel and Peter Shupe were assisting in another car.
Garcia, but not Barron, testified at the trial.
Garcia and Barron approached appellant, who was standing on the sidewalk. Garcia, using street jargon, asked if appellant had $10 worth of cocaine base. Appellant replied, “I will hook you up,” indicating he would take care of Garcia. The three walked to the doorway of the bar, and appellant spoke to a male. The male said there was “nothing right now,” it was “hot right now,” and to “take him to the other location.” Appellant asked if Garcia had a car. Appellant, Garcia, and Barron entered Garcia’s car, and appellant directed them to an East Valinda house which was about three blocks away.
After the three arrived at the house, Garcia gave appellant a premarked $10 bill reflecting Barron’s initials. Appellant walked around the side of the house and eventually disappeared from view. He later returned and gave Garcia .06 grams of a substance containing cocaine base. Appellant then asked Garcia to drive him to a location on Gemini, about four blocks away. Garcia complied and dropped appellant off.
Garcia told deputies to arrest appellant. Appellant was detained and searched. Shupe recovered the premarked bill from appellant’s right front pants pocket. McDaniel saw Shupe recover the bill. Shupe gave the bill to McDaniel. Appellant initially told McDaniel that appellant’s name was Frank Lopez.
2. Defense Evidence.
In defense, appellant, who had suffered a 1989 felony drug conviction and 1992 convictions for robbery and assault, testified as follows. On November 24, 2003, appellant was outside a clothing store when Garcia and a second man approached. Garcia asked appellant if he knew where Garcia could “score any rock,” and appellant replied, “You got me.” Garcia and the second man walked away, then returned. Garcia asked appellant if he knew where to “score anything[.]” Appellant began walking, followed by Garcia and the second man.
Appellant, who worked at the bar, entered it to get money. Appellant remained inside perhaps five minutes, then exited. Garcia and the second man, still there, again asked appellant if he wanted to “score . . . dope[.]” Someone told appellant to “watch out for those guys[.]” Appellant walked to the clothing store, Garcia and the second man followed and kept asking appellant for “dope,” but appellant said he had none. At the clothing store, appellant spoke to his friend’s aunt.
Appellant later walked to a phone booth but determined he had no money. He asked if he could use a cell phone, and Garcia or the second man let appellant use one. Appellant became suspicious since he had never seen a “rock head” with a cell phone. Appellant tried to call a female but she was not home.
Appellant asked Garcia or the second man if appellant could get a ride. Appellant wanted to see a girl but intended Garcia and the second man to think that appellant might be able to get narcotics for them. Garcia and the second man gave appellant a ride to Gemini. When appellant arrived, he indicated he did not have anything. About 20 minutes after appellant arrived at Gemini, he was detained.
Appellant never asked to be dropped off at the East Valinda location, and the car never stopped there while appellant was in the car. He never gave the name Frank Lopez to anyone and did not have any money. Barron got mad because appellant used the cell phone, and Garcia got mad because appellant had obtained a ride.
At the sheriff’s station, appellant “ended up having to sign a different name.” Someone returned and asked appellant what was his real name was, and appellant replied Ralph Duarte. Someone asked who Frank was, and appellant replied he did not know.
CONTENTION
Appellant claims the trial court erroneously denied his motion for a new trial.
DISCUSSION
The Trial Court Properly Refused to Order a New Trial.
1. Pertinent Facts.
In Duarte I (see fn. 1), we held, inter alia, that the trial court erroneously concluded appellant had failed in his Pitchess motion to make the good cause showing required by Evidence Code section 1045, subdivision (b), entitling him to an in camera inspection of the personnel records of Garcia, Barron, McDaniel, Shupe, and Los Angeles County Sheriff’s Deputy Arruda. In his motion, appellant sought, from the personnel records of those deputies, information “relating to making false arrests, planting evidence, fabricating police reports or probable cause, and committing perjury.” (Duarte I, at p. 12.) We reversed the judgment and remanded the matter with directions to the trial court, inter alia, to conduct the inspection and, if it revealed relevant information, to order disclosure, allow appellant an opportunity to demonstrate prejudice, and order a new trial if there was a reasonable probability the outcome would have been different had the information originally been disclosed. (Duarte I, at pp. 2, 7-12, 20.)
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
In his opening brief in the present appeal, appellant requests, without opposition, that we take judicial notice of his opening brief in Duarte I. We do so.
Following remand, the court conducted in camera hearings and disclosed relevant information to appellant. Based on appellant’s resulting investigation, appellant, on December 11, 2006, filed a motion for a new trial pursuant to Penal Code section 1181, subdivision 8. No declaration was attached to the written motion as filed. In the written motion, appellant argued that in order to convict appellant, the jury had to believe (1) Garcia when he testified that appellant directed him to the East Valinda address, a premarked $10 bill was given to appellant, and appellant returned with a rock of cocaine, and (2) Shupe and McDaniel when they testified that the premarked bill was recovered from appellant’s person. In an unsworn portion of the written motion, appellant presented the following information, in relevant part, as to Garcia, Shupe, and McDaniel.
The written motion appears to state it is pursuant to “Penal Code § 1181, Subdivision 5,” (CT/47) but the “5” has been amended by interlineation to read “8.” There was no dispute below, and there is no dispute here, that the motion was made pursuant to Penal Code section 1181, subdivision 8. Penal Code section 1181, subdivision 8, states, in relevant part, “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶] . . . [¶] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given. . . .”
As discussed below, appellant later submitted the declaration of Darush Irannejad.
a. Deputy Garcia.
On May 22, 2002, Darush Irannejad filed a complaint against Garcia for an improper citation and arrest. Irannejad told appellant’s investigator that Irannejad pulled into his driveway, exited his vehicle, greeted his neighbor, and was about to enter Irannejad’s home when Garcia and his partner raced towards Irannejad with their guns drawn. Garcia would not tell Irannejad why he was being detained. Garcia falsely accused Irannejad of running from police and crashing his vehicle into a tree. The sheriff’s department did not follow up on Irannejad’s complaint.
b. Deputy Shupe.
On May 24, 2003, Crystal Floyd filed a complaint against Shupe for improper tactics and unreasonable force. Floyd stated that, during the arrest of Floyd’s brother, James Moore, Shupe put a gun to Moore’s head and smashed his finger with Shupe’s boot when Moore refused to speak to Shupe. This occurred when Moore was prone on the ground. Department personnel told Moore that the complaint was investigated.
Appellant argued in the written motion that “. . . Shupe’s testimony was important . . . because it created the link between the alleged ‘marked’ $10 bill allegedly given to [appellant] by . . . Garcia and the one found on [appellant’s] person. [Shupe’s] testimony also served the purpose of bolstering . . . Garcia’s credibility.” Appellant suggests “the link” was Shupe’s testimony that he recovered the bill from appellant, and suggests that this testimony bolstered Garcia’s credibility because Garcia testified that he gave a bill to appellant, and Shupe testified he recovered one from appellant. According to appellant, evidence from Floyd which tended to show that Shupe previously had used improper police tactics would have been relevant and called his credibility into question.
c. Deputy McDaniel.
Sometime in 2000, Ulysses Peralta filed a complaint against McDaniel for lying and for an improper detention and arrest. In May 2000, Peralta, a businessman, was en route to a business function when he stopped at a friend’s house in Hacienda Heights. As Peralta was exiting his vehicle, McDaniel pulled up, and Peralta saw his friend in the back seat of the patrol vehicle. When Peralta tried to determine why his friend had been arrested, McDaniel detained Peralta, and falsely accused him of running from McDaniel.
Peralta’s friends had been involved in a drug transaction with an accomplice who had fled from deputies. McDaniel falsely arrested and searched Peralta for being the person who had fled, and despite the fact that McDaniel’s partner had questioned whether Peralta was the person who had fled. Peralta was innocent, and when he questioned why McDaniel was arresting him, McDaniel became angry. McDaniel used profanity with Peralta and treated him improperly. Peralta is currently afraid of McDaniel and, during Peralta’s interview with appellant’s investigator, Peralta was very upset about the incident.
On May 16, 2000, Don Smith filed a complaint against McDaniel for an improper detention, search, and arrest. Smith’s mother, Betty Smith (Betty), filed the same complaint. In May 2000, Betty owned a business with several employees, including Smith. That same month, Ronnie Martinez, one of her employees, was busy at work when McDaniel approached and called Martinez to the property’s fence. After a short conversation, McDaniel falsely accused Martinez of being under the influence, and McDaniel violently dragged Martinez over the fence. Betty filed a complaint and was interviewed with Smith and Martinez.
Some time after the incident, McDaniel and other deputies arrived at Smith’s home to arrest him. When Betty demanded to know why Smith was being arrested, she was violently grabbed and detained. Betty was later released, but she had suffered injuries.
About 3:00 p.m. on October 2001, Eugenio Vicuna was coming home from work when he stopped outside a convenience store to buy a telephone card. McDaniel stopped Vicuna for looking suspicious. McDaniel handcuffed Vicuna, detained him for about 15 minutes, and questioned him for no reason. McDaniel ultimately released Vicuna, but the incident was humiliating. Vicuna immediately complained to the department and was told his complaint would be investigated.
Appellant argued in his written motion that McDaniel’s testimony was an important part of the prosecution’s case against appellant because the testimony corroborated other testimony that the premarked bill found on appellant’s person was the bill which Garcia gave to appellant. The above listed incidents relating to McDaniel’s conduct would have assisted the jury in assessing his credibility and would have undermined the prosecution if appellant had been allowed to present it.
d. Irannejad’s Declaration.
On February 15, 2007, appellant filed Irannejad’s declaration dated February 14, 2007. The declaration reiterated the facts which Irannejad recited in his previously mentioned complaint about Garcia. The declaration recited, in pertinent part, the following additional facts. Deputies grabbed Irannejad, violently threw him against a wall, and searched him. Irannejad’s mother came outside the house to see what was going on and the deputies treated her rudely. Garcia was the worse of the two deputies, as his partner seemed merely to stand and watch. Irannejad ended up going to court but lost his case because “Deputy Wright” lied about what had happened. The department followed up on Irannejad’s complaint by calling him.
It appears another deputy’s name was originally typed in the declaration but was amended by interlineation to reflect the name “Wright” instead.
e. The Parties’ Argument and the Court’s Ruling.
At the February 15, 2007 hearing on appellant’s motion for a new trial, the trial court indicated it had read appellant’s motion and Irannejad’s declaration. Appellant’s counsel represented the following. Counsel had an ample opportunity to locate witnesses and have appellant’s investigator interview them. However, even as to the witnesses who had been interviewed, counsel had found it incredibly difficult to get them to cooperate further by coming to court voluntarily or by providing a declaration. Peralta flatly told appellant’s investigator that Peralta did not want to be involved in appellant’s case because Peralta was afraid of the deputies. Peralta had moved or was avoiding service.
As to other witnesses (and counsel claimed he referred to five or six of them in the motion), these provided, in counsel’s estimation, the best evidence of bias or lack of credibility on the part of the deputies, but these witnesses too had moved or were avoiding service.
Counsel obtained only one declaration, the one from Irannejad. However, Irannejad told counsel that Irannejad wanted no further involvement in appellant’s case. Irannejad had been arrested in the matter out of which his complaint arose, and he ultimately was convicted in his case.
Counsel subpoenaed Irannejad but told him he did not have to come to court because counsel had Irannejad’s declaration.
All of the complaints arose from the arrests of the complainants, and this affected their willingness to cooperate in appellant’s case. Counsel had three notices from the sheriff’s department that it had not been able to serve witnesses because they had moved or were avoiding service. There was nothing more appellant’s counsel could do to enhance appellant’s motion for a new trial.
Appellant later argued as follows. Appellant’s case was a credibility contest and evidence that the deputies lacked credibility might have swayed the jury to acquit appellant. As of the time of the hearing, Irannejad was the only person whose testimony counsel felt comfortable presenting to the trial court. If the jury had heard testimony from Irannejad that Garcia had been less than truthful in the past, the jury would have acquitted appellant because the main piece of evidence was the premarked $10 bill which was allegedly found on appellant after the alleged sale.
The People opposed the motion. Citing (according to the reporter’s transcript) Penal Code section “1181(a)” (sic), the prosecutor noted that Irannejad’s declaration was the only declaration supporting the motion, it was questionable whether Irannejad would testify, Irannejad had been convicted in his own case, and strong evidence of appellant’s guilt was presented at trial in the present case.
The court stated, “I believe [the prosecutor] is correct relating to live testimony or affidavits. And we do only have Mr. Irannejad. But even assuming for a moment that I were permitted to base the judgment on the information contained in the motion for new trial, even under that particular review, I don’t find that there’s enough to either demonstrate prejudice or to demonstrate that there’s a reasonable probability that the outcome would be different if this information had been available prior to the first trial.”
Moreover, the court indicated as follows. The initials and signature of another deputy, not those of Garcia, were on “the dollar bill.” Shupe had been accused of using improper tactics and unreasonable force, however, these matters had nothing to do with false arrests, planting of evidence, fabrication of police reports or probable cause, or perjury, that is, improper conduct by which Shupe could be impeached. Shupe’s only involvement with appellant was assisting in finding the premarked bill. McDaniel’s only contact with appellant was McDaniel’s recovery of the premarked bill. McDaniel had nothing to do with the marking of the bill or the giving of it to appellant.
The court added, “So for all of those reasons, even if I were permitted to consider the information contained in the motion, I don’t find that it rises to the level of suggesting a different outcome. And under 1181.8 [sic], I certainly find Mr. Irannejad’s declaration by itself not sufficient to demonstrate prejudice, and certainly not sufficient to demonstrate a reasonable probability that the outcome would have been different had that been presented at trial or had been available for presentation at trial.” The court denied appellant’s motion for a new trial.
There is no such Penal Code section. See footnote 5.
2. Analysis.
As mentioned, in Duarte I, we remanded the matter and, inter alia, directed the trial court to disclose any relevant information from the requested personnel records, allow appellant an opportunity to demonstrate prejudice, and order a new trial if there was a reasonable probability the outcome would have been different had the information originally been disclosed. The parties concede the determination of whether appellant demonstrated prejudice was a matter directed to the trial court’s discretion. In order to conclude the trial court abused its discretion, we must conclude the trial court’s action in denying appellant a new trial was irrational, capricious, or patently absurd (cf. People v. Delgado (1992) 10 Cal.App.4th 1837, 1845; In re Arthur C. (1985) 176 Cal.App.3d 442, 446) and without even a fairly debatable justification. (People v. Clark (1992) 3 Cal.4th 41, 111.)
Our opinion in Duarte I cited People v. Johnson (2004) 118 Cal.App.4th 292, 304-305 (Johnson), and People v. Hustead (1999) 74 Cal.App.4th 410, 418-423 (Hustead), and our disposition generally followed the dispositional approach employed in those cases. Our disposition effectively reversed the judgment and directed the trial court, inter alia, to give appellant an opportunity to demonstrate prejudice and to order a new trial if he succeeded. (See Pen. Code, § 1262.) Although, following remand, appellant made a motion for a new trial, and appears to have done so under Penal Code section 1181, subdivision 8, neither the discussion nor the disposition in Duarte I expressly referred to section 1181, subdivision 8. At the hearing on the motion, the trial court ruled appellant did not demonstrate prejudice and, when so ruling, essentially recited the language of our disposition in Duarte I. There is no need to decide to what extent, if any, section 1181, subdivision 8, governed proceedings following our remand in Duarte I.
In the present case, there was a very real issue as to whether appellant could have secured the attendance of his potential witnesses at a retrial. Appellant effectively conceded during argument below that all of his potential witnesses were uncooperative or unavailable. Appellant’s motion was supported by only one declaration--that from Irannejad. Appellant candidly conceded Irannejad wanted no further involvement in appellant’s case. Appellant also conceded that the unsworn witnesses had moved or were avoiding service.
Moreover, appellant effectively conceded below that Irannajed’s conviction in the matter out of which his complaint of deputy misconduct arose subjected him to impeachment for bias. We also note that, according to appellant, Irannejad was convicted based on the testimony of deputy Wright, who was not one of the deputies at issue in appellant’s Pitchess motion. Indeed, according to appellant, all of the complaints of deputy misconduct arose from arrests of the complainants.
Further, appellant’s counsel indicated at the hearing that, as of the time of the hearing, Irannejad was the only person whose testimony counsel felt comfortable presenting to the trial court. His testimony, we note, pertained in relevant part only to Garcia, and not to any other deputy. The trial court explained why there was little use to attempt to impeach Shupe or McDaniel. Further still, Floyd’s potential testimony as to Shupe appears to have pertained to improper tactics relating to unreasonable force, not dishonesty, and evidence of unreasonable force was not a matter of relevant impeachment in this case.
Appellant argues that the trial court erroneously believed it could consider only Irannejad’s declaration and not other information (e.g., the unsworn complaints) about the deputies; therefore, the court erroneously failed to exercise its discretion and the matter should be remanded to permit the trial court to exercise its informed discretion. However, there is no need to reach the issue. Appellant later concedes that, absent other considerations, remand is unnecessary because the court assumed arguendo that it could consider other information and still denied appellant’s motion for a new trial. Moreover, as shown below, appellant’s arguments that other considerations compel a contrary result are without merit.
Appellant argues the trial court erroneously found that none of the deputies were involved with the preparation of the premarked bill; therefore, the court failed to exercise its discretion. However, the court made no such finding.
Appellant argues the trial court’s failure to exercise its discretion was prejudicial for multiple reasons. First, the front and back of the premarked bill were attached to a piece of paper and photocopied, and appellant suggests the photocopy was fabricated because it depicts the premarked bill (which was supposed to have been marked with Barron’s initials before the narcotics sale) and, below the bill, the arrest report number (which could only have been generated after the narcotics sale and appellant’s arrest). However, nothing precluded the jury from inferring that the bill was properly premarked before the narcotics sale and that the arrest report number was properly added to the piece of paper after the narcotics sale.
Second, appellant suggests the prosecutor may have coached Shupe concerning his testimony. The burden is on appellant to demonstrate error from the record (In re Kathy P. (1979) 25 Cal.3d 91, 102), and he has failed to demonstrate that any such coaching occurred. Third, appellant suggests Garcia’s animus towards appellant was revealed when Garcia, during his trial testimony, improperly disclosed appellant’s gang moniker. In Duarte I, we rejected this as a ground to reverse the judgment when we rejected appellant’s contention that the trial court erroneously denied the motion for a mistrial which appellant brought based on Garcia’s disclosure. Appellant has now recast the argument to support his claim that the trial court erroneously denied his motion for a new trial, but we are unconvinced that Garcia’s disclosure, or any other arguments of appellant, compel reversal of the judgment.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., ALDRICH, J.