Opinion
E063035 E063036
03-15-2017
THE PEOPLE, Plaintiff and Respondent, v. KEVIN REX RILEY, Defendant and Appellant.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina, Meagan J. Beale, Alastair J. Agcaoili, and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BAF1300797 & P96F3869) OPINION APPEAL from the Superior Court of Riverside County. Irma Poole Asberry, Judge. Affirmed in part; reversed in part. Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina, Meagan J. Beale, Alastair J. Agcaoili, and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Kevin Rex Riley of one count of assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c); count 1), two counts of resisting an executive officer by means of threats or violence (§ 69; counts 3 and 4), and one count of child endangerment (§ 273a, subd. (a); count 5.) In a bifurcated proceeding, the trial court made true findings with respect to four alleged prison priors (§ 667.5, subd. (b)), a serious felony prior (§ 667, subd. (a)), and a strike prior (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).
Further undesignated statutory references are to the Penal Code.
The jury could not reach a verdict with respect to a second count of assault with a deadly weapon on a peace officer, so the trial court declared a mistrial with respect to that count, which was later dismissed on the People's motion. The jury was not asked to reach a verdict with respect to a sixth charged count, for misdemeanor resisting arrest (§ 148), and it did not do so, although the People's briefing on appeal erroneously asserts otherwise. The trial court erred by initially imposing and staying a sentence for count 6 as if the jury had returned a guilty verdict, but subsequently corrected that error.
Prior to sentencing, defendant sought relief pursuant to the Safe Neighborhoods and Schools Act, enacted as Proposition 47 in the November 2014 election, petitioning to reduce several prior felony convictions to misdemeanors. The trial court granted the petition with respect to a March 22, 2010, conviction for drug possession (Health & Saf. Code, § 11377, subd (a), case No. RIF10001692), which was the predicate offense for one of the prison priors. The trial court denied the petition with respect to another conviction, for receiving stolen property (§ 496, case No. P96F3869), dating from 1996. Defendant was sentenced to an aggregate prison term of 21 years, including one year for the prison prior enhancement that related to the March 22, 2010, drug possession conviction.
Defendant's petition also indicated that he sought redesignation of a second conviction for violation of Health and Safety Code section 11377, subd. (a), case No. FSB059967, dating from 2007, from San Bernardino County. The petition was withdrawn with respect to that conviction by defense counsel because a separate petition for that conviction was filed in San Bernardino County Superior Court.
On appeal, defendant asserts six claims of error: (1) the trial court erroneously rejected his showing of good cause in support of his motion for Pitchess discovery; (2) the trial court should have granted his requests for a mistrial based on the incompetent performance of a translator (defendant is deaf and used sign language to communicate during trial); (3) his rights were violated by the use of only one interpreter, instead of two, during portions of the trial and posttrial proceedings; (4) he was denied the right to be personally present at all critical stages of the trial, when on four occasions the court and counsel for the parties held bench conferences out of his presence; (5) the trial court should not have imposed a prison prior enhancement based on a conviction that had been reduced to a misdemeanor under Proposition 47; and (6) the trial court erred by denying his Proposition 47 petition with respect to the 1996 conviction for receiving stolen property.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
We find that defendant's Pitchess motions and requests for mistrial were properly denied, as was his Proposition 47 petition regarding his 1996 conviction for receiving stolen property. Further, his constitutional rights were not prejudicially violated by the issues he raises relating to interpreters, or by his absence from certain proceedings during the trial. The trial court erred, however, by imposing a prison prior enhancement based on a conviction that had been reduced to a misdemeanor under Proposition 47. The judgment therefore must be reversed with respect to that enhancement, but will be affirmed in all other respects.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant's present convictions relate to the events of the evening of November 17, 2013, at the Smith Correctional Facility in Banning. The prosecution presented evidence that at approximately 10:30 p.m. on that date, defendant drove into the visitor's parking lot with his girlfriend and two children in the car and parked. He exited the vehicle (his girlfriend and the two children, born in 2006 and 2009, remaining in the vehicle) and approached the entrance to the facility, where he told the two Riverside County Sheriff's Department deputies on duty that he "needed to put money on somebody's books." From defendant's voice, both deputies believed defendant to be hearing impaired. The deputies were correct; although defendant can speak orally "a little bit" and can read lips, he is completely deaf, and is fluent in American Sign Language.
Pursuant to standard procedure, one of the deputies, Deputy Joseph Smith, asked to see defendant's identification. Defendant did not immediately comply; he first challenged the request, saying something "along the lines of 'Why? I'm just here to put some money on somebody's books'"; after the request was repeated, he "flashed" the identification card to Deputy Smith without removing it from his wallet or handing it to him. Eventually, defendant complied with the request to hand over the identification card, and Deputy Smith ran a computer search on his information.
As the search processed, defendant appeared "nervous" to the deputies. He also turned back toward the parking lot, and began signing to someone—the deputies were unable to see to whom—who had remained in the car. The search's results, when they came, revealed cause for concern: defendant was a parolee at large with an outstanding arrest warrant, and was "[p]resumed armed and dangerous."
When he learned defendant had an outstanding arrest warrant, the second deputy, Deputy Raul Baron, exited the guard shack to detain defendant. Deputy Baron told defendant to put his hands behind his back and turn around. Defendant did not comply, throwing up his hands and saying "Why?" After a second verbal order was also unsuccessful, Deputy Baron stepped forward to grab defendant by the arm and attempt to push defendant against the wall. Defendant pulled his arm away and "took off running" towards his vehicle with both deputies in pursuit.
Defendant was able to reach the vehicle and open the driver's side door. Deputy Baron tried to pin defendant between the door and the frame of the car to keep him from entering, but was unsuccessful. Deputy Baron then tried to pull defendant from the car. As Deputy Baron and defendant struggled, Deputy Smith reached over Deputy Baron and deployed his Taser at defendant from approximately a foot away. The Taser darts struck defendant in the left shoulder, but did not incapacitate him.
As Deputy Baron and Deputy Smith were struggling with defendant at the vehicle's driver's side door, defendant's girlfriend jumped out of the car's passenger seat. Before she could remove the children from the car, however, defendant placed the car in reverse and accelerated quickly backwards, breaking traction and causing the tires to screech. Both deputies jumped back to get out of the way of the car, but Deputy Smith was struck by the still-open driver's side door, pushing him with some force into an adjacent parked vehicle. After some further maneuvering in the parking lot, and closing the driver's side door to the car, defendant drove away at a high rate of speed.
Deputy Smith was taken to the hospital, but suffered only bruising on his arm. Defendant was apprehended the next day; a police officer who had been looking for defendant at his house saw him walking down the street nearby. Defendant ran from the officer, but was found hiding nearby shortly thereafter, and arrested.
In addition to evidence of the incidents underlying defendant's present charges, the prosecution presented testimony from the victim of a separate residential burglary on March 5, 2010. The victim testified that he returned home that day and discovered defendant, along with defendant's car and a trailer, inside his garage. Various appliances that had previously been inside the victim's house were on the trailer. After a confrontation with the victim, defendant drove his car back and forth multiple times, ramming into the victim's truck and the wall of the garage in turn, before he was able to clear a path to drive out by breaking off a piece of the garage wall. The victim had to jump out of the way to avoid being run over as defendant escaped.
Defendant testified twice in his own defense. Immediately after defendant initially testified on direct examination, defense counsel informed the trial court that one of the courtroom interpreters who had translated the testimony, Theodore O'Connor, lacked the appropriate certification, and that aspects of defendant's testimony had been omitted or mistranslated. Defense counsel had been informed of these deficiencies by another interpreter, Pasch McCombs. After a hearing on the matter, the trial court denied defendant's request for a mistrial, ordered defendant's testimony stricken, and directed the jury to disregard the testimony and not to consider it for any purpose. The court's instruction included the explanation that the testimony was being stricken due to "some interpreter issues," including "some serious omissions" and "serious misinterpretations" of defendant's testimony. Defendant then testified again with a different interpreter (namely, Mr. McCombs), starting from the beginning. Mr. O'Connor did not serve as a translator again through the remainder of the proceedings.
The substance of defendant's testimony, properly translated, was that when the deputies asked him to show identification, he noticed that the driver's license he had with him was expired, and that he then tried to use sign language to tell his girlfriend to bring him his valid license, which was in the car. When she did not see him signaling to her, he ran back to the car to retrieve the license. He denied any physical contact between himself and either of the two deputies occurred before he ran back to the car, and claimed to be unaware the deputies were attempting to detain him.
Defendant further testified that when he reached his car, he sat in the driver's seat, turned on the car to get the light to come on, and began looking for his valid license. A few seconds later, he felt an electrical shock in his shoulder; he did not immediately know the source. He looked around, "trying to find a way to stop it." He saw Deputy Baron "standing in front of [him] with something black in his hand, like a Taser or heavy-duty something." He was scared, so he put the car in reverse and backed up. As he did so, he saw Deputy Smith "was standing there," but he denied striking him with the car door as he reversed.
The jury returned its verdicts with respect to counts 1, 3, 4, and 5 on October 3, 2014. The jury could not reach a verdict with respect to count 2; the trial court declared a mistrial with respect to that count, and it was subsequently dismissed on the People's motion. After a bench trial, conducted October 31, 2014, the trial court made true findings with respect to each of the alleged enhancements.
On November 18, 2014, defendant filed, among other things, a motion for new trial, and a Romero motion. Defendant's new trial motion asked the trial court to set aside the jury's verdict as contrary to the evidence, pursuant to section 1181, subdivision 6. Defendant also invoked section 1181, subdivision 5, arguing that the trial court should have declared a mistrial, instead of having instructing the jury to disregard defendant's initial testimony and having him testify again, after the inadequacy of the translation of his initial testimony came to light. The trial court denied the new trial motion and Romero motion on February 27, 2015.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Section 1181, subdivision 6 authorizes the grant of a new trial "[w]hen the verdict or finding is contrary to law or evidence . . . ."
Section 1181, subdivision 5 authorizes the grant of a new trial "[w]hen the court . . . has erred in the decision of any question of law arising during the course of the trial . . . ."
Defendant filed his petition pursuant to Proposition 47 on December 12, 2014. The petition was heard on February 27, 2015; the court granted the petition with respect to defendant's March 22, 2010, conviction for drug possession, denied it with respect to his 1996 conviction for receiving stolen property.
Later on February 27, 2015, the trial court imposed sentence on defendant's current charges, imposing an aggregate prison term of 21 years as follows: consecutive terms of four years (count 5), one year and four months (count 1) and eight months (count 4), each doubled by the strike enhancement; one year consecutive for each of the four prison prior enhancements, including the one based on the March 22, 2010, conviction reduced to a misdemeanor by the trial court's grant of relief pursuant to Proposition 47; and five years consecutive for the serious felony prior enhancement. In accordance with section 654, the trial court imposed a stayed sentence with respect to count 3.
II. DISCUSSION
A. Appellant's Pitchess Motions Were Properly Denied.
Defendant asks that we conditionally reverse the judgment and require the trial court to conduct an in camera review of citizen complaint records for Deputies Smith and Baron to determine whether relevant discovery was withheld. We decline to do so, because we find no error in the trial court's summary denial of defendant's Pitchess motions.
1. Additional Background.
Prior to trial, defendant filed a Pitchess motion seeking discovery of citizen complaint records of Deputies Smith and Baron relating to "acts indicating . . . dishonesty, false arrest, the fabricating of charges and/or evidence, [or] any act evincing morally lax character . . . ." (Boldface omitted.) With respect to Deputy Smith, the motion also sought disclosure of excessive force complaints.
Defendant's pretrial Pitchess motion was supported by an affidavit from his counsel. The affidavit asserts "upon information and belief" the following facts in support of a finding of good cause for the discovery: "[Defendant] approached the main gate at Smith Correctional Facility. Deputy Smith asked for identification and [defendant] gave him an expired identification card. After giving the I.D. to Deputy Smith, [defendant] ran back to his car that was parked nearby in order to get his valid identification from inside the car. He got into the car and began looking for his identification. He felt a tap on his shoulder from his girlfriend who was in the car. She then got out of the car. [Defendant] felt a shock, then turned around and saw Deputy Smith holding a yellow Taser gun. [Defendant] saw that Deputy Barron was standing to the front of his car. [Defendant] turned on the ignition and backed the car up. Deputy Smith was next to the car, and Deputy Barron was in front. [Defendant] never struck Deputy Smith. [Defendant] then drove home. At no point did he strike or drive at either Deputy Barron or Deputy Smith."
The trial court summarily denied the motion, without holding any in camera review of the records.
After trial, defendant filed another Pitchess motion. The new motion was supported by a somewhat modified affidavit by his counsel. The affidavit describes the same basic series of events, but includes a specific denial that there was ever any "confrontation or physical contact between [defendant] and the Deputies at the guard shack." The affidavit also points to the testimony of two eyewitnesses, who "testified consistently with [defendant's] claims in that they witnessed [defendant] signaling to the car in the parking lot and then saw him run to the car in the lot, without any physical confrontation at the guard shack that was testified to by Deputies Barron and Smith." Finally, the affidavit asserts that "Deputies Barron and Smith testified inconsistently regarding the consultation with each other in the preparation of their reports," and describes their testimony in that regard.
Again, the trial court denied the motion without an in camera review of complaint records.
2. Legal Principles and Standard of Review.
A criminal defendant is entitled to discovery of a police officer's confidential personnel records if those files contain information that is potentially relevant to the defense. (Pitchess, supra, 11 Cal.3d at pp. 537-538; Evid. Code, §§ 1043-1045.) To obtain discovery, the defendant must file a motion, supported by affidavits, "showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation . . . ." (Evid. Code, § 1043, subd. (b)(3).) If good cause is shown, the trial court then reviews the records in camera to determine if any of them are relevant to the proposed defense. (Evid. Code, § 1045, subd. (b).)
The good cause showing that triggers the trial court's in-chambers review is "relatively low" in the context of a pretrial Pitchess motion. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83 (City of Santa Cruz).) Nevertheless, a defendant is not entitled to even an in camera review of police personnel files without first "'establish[ing] a plausible factual foundation'" for the defense asserted. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1025 (Warrick).) The defendant "must present . . . a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents." (Ibid.) In doing so, the defendant need not point to any corroboration for the defendant's account, and is also not required to "present a credible or believable factual account of, or a motive for, police misconduct." (Id. at p. 1026, original italics.) Rather, all that is required is to show a scenario "that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges." (Ibid.) "[D]epending on the circumstances of the case," a sufficient factual allegation in a Pitchess motion "may consist of a denial of the facts asserted in the police report." (Warrick, supra, at pp. 1024-1025.)
A Pitchess motion may be brought in the context of a posttrial motion, but it becomes subject to a different analysis of good cause and materiality than a pretrial motion. (See People v. Nguyen (2007) 151 Cal.App.4th 1473, 1477-1478 (Nguyen).) Posttrial, the court determines whether the information is material based on the subject matter of whatever is involved in the pending litigation. (Id. at p. 1477.) For example, in Nguyen, "the 'pending litigation' to which the requested records had to be material was [the defendant's] new trial motion claiming ineffective assistance." (Id. at p. 1478.) In Hurd v. Superior Court (2006) 144 Cal.App.4th 1100, the pending litigation was "the habeas corpus proceeding that has been or will be initiated by petitioner's habeas corpus petition," and the scope of Pitchess discovery was limited to matters material to "claims cognizable on habeas corpus." (Hurd, supra, at pp. 1105, 1108, 1111.)
On appeal, we review a trial court's ruling on a Pitchess motion for abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
3. Analysis.
Defendant's pretrial Pitchess motion is unsupported by an adequate showing of good cause, even under the applicable "relatively low" standard. (City of Santa Cruz, supra, 49 Cal.3d at p. 83.) The account of events included in his counsel's declaration elides any discussion of what happened between defendant handing his identification card to the officer and his return to his car. It does not dispute the attached police reports stating that defendant argued with the deputies at the guard booth, and then physically resisted the deputies' efforts to detain him there. It also does not dispute—it indeed affirmatively states—that defendant "ran" to his car from the guard booth, as described in the police reports. Moreover, it does not dispute that, once in his car, when he saw a deputy holding a Taser gun, his reaction was to put the car in reverse and drive away. The account is also devoid of facts that might show good cause for discovery of evidence of "acts indicating . . . dishonesty, false arrest, the fabricating of charges and/or evidence, [or] any act evincing morally lax character . . . ." We therefore find no abuse of discretion in the trial court's determination that defendant failed to "present . . . a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents." (Warrick, supra, 35 Cal.4th at p. 1025.)
Defendant notes on appeal that several eyewitnesses, whose accounts were included in the police reports attached to his Pitchess motion, did not see defendant physically resist or struggle with the deputies before he went back to his car, was shocked with a Taser, and drove away. It is not apparent from the police reports, however, that the eyewitnesses observed defendant's interactions with the deputies at the guard booth at all, focusing instead on the moments immediately thereafter, when defendant began running back to his car, with deputies in pursuit.
Defendant suggests that City of Santa Cruz, supra, 49 Cal.3d at page 74, supports a different result. It does not. In City of Santa Cruz, the court of appeal found the defendant had shown a reasonable basis to infer that the officers who arrested him "may have been accused of the use of excessive force in the past, and that such information may be found in their personnel records." (Id. at p. 93.) This conclusion followed from the defendant's showing of good cause, which included specific facts detailing the officers' alleged use of "considerable force" against him, even after he had been handcuffed and subdued. (City of Santa Cruz, supra, at pp. 79, 85-86, 93.) Moreover, the attached police reports' description of the arrest corroborated defendant's allegations of the type of force used, even if differing in other details. (Id. at pp. 79, 86, 93.) Defendant here made no similar showing, instead omitting any discussion of what force might have been used by the officers at the guard booth, and affirmatively corroborating the deputies' account that defendant ran back to his car and then drove away, despite having been shocked with a Taser, rather than submitting to detention.
As noted, defendant's recitation of facts in support of his posttrial Pitchess motion was expanded in comparison to his pretrial Pitchess motion. Nevertheless, he failed to show the requested discovery to be relevant to the then-pending litigation under the more stringent standard applicable for posttrial Pitchess motions. (Nguyen, supra, 151 Cal.App.4th at p. 1478.) More specifically, the discovery is not relevant to any argument that defendant asserted in his motion for new trial. The trial court's inquiry under section 1181, subdivision 6 is confined to what the "evidence shows"; it may not look to evidence that was not presented to the jury during trial. (§ 1181, subd. 6; People v. Moreda (2004) 118 Cal.App.4th 507, 514.) Defendant's arguments about the adequacy of translation services provided at trial, and the steps taken to cure the issues that arose, are also unrelated to any evidence that might be discovered in police personnel records.
Defendant argues on appeal that Pitchess discovery was necessary to support an additional ground for a new trial motion, based on newly discovered evidence. (See § 1181, subd. 8.) This argument fails for several reasons. First, defendant's motion for new trial does not request a new trial on the basis of newly discovered evidence, and at no point in the trial court did defendant assert an immediate intention to make a motion for new trial on the basis of newly discovered evidence. In contrast, in Nguyen, supra, 151 Cal.App.4th at page 1476, new defense counsel requested Pitchess discovery to support a new trial motion on a specific basis—ineffective assistance of counsel— supported by a specific, plausible factual basis (trial counsel's failure to file an earlier Pitchess motion).
Second, the asserted factual basis for defendant's posttrial Pitchess motion consists solely of information that was available to defendant prior to trial (his own account of the relevant events) or that became available to him during trial (the testimony of the deputies and eyewitnesses). Defendant therefore could have renewed his pretrial Pitchess motion prior to the close of trial, and by extension could not show anything that might have been discovered though a Pitchess inquiry to be evidence "which he could not, with reasonable diligence, have discovered and produced at the trial," as required for a new trial on the basis of newly discovered evidence. (§ 1181, subd. 8.)
On appeal, defendant suggests that the pending litigation to which Pitchess discovery would be relevant includes his sentencing and his Romero motion. But defendant made no such argument in the trial court. As such, he failed to satisfy the requirement of showing good cause for the discovery by "setting forth the materiality thereof to the subject matter involved in the pending litigation . . . ." in his motion or the supporting affidavits with respect to those subject matters. (Evid. Code, § 1043, subd. (b)(3).)
We decline to consider whether these arguments would have had merit, if defendant had properly presented them to the trial court.
In short, defendant has shown no abuse of discretion with respect to the denial of his Pitchess motions.
B. The Trial Court Did Not Err by Denying Defendant's Requests for Mistrial Based on Incompetent Translation of His Original Testimony.
Defendant contends that the trial court erred by denying his request for a mistrial, initially made before trial, and renewed in his new trial motion. He argues that striking his initial testimony and allowing him to testify again with a different interpreter did not cure the prejudice caused by translator's deficient performance. We find no error.
A defendant who is not fluent in English has no constitutional right to a certified interpreter, but does have the right to a competent interpreter. (People v. Estrada (1986) 176 Cal.App.3d 410, 415 (Estrada).) Competent does not equate to perfect; there is no denial of the right to a competent interpreter where translation errors are promptly corrected. (People v. Mendes (1950) 35 Cal.2d 537, 543.)
A motion for mistrial may be granted only when error has occurred that has resulted in incurable prejudice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1154.) The trial court is vested with considerable discretion to determine whether a particular error is incurably prejudicial, and we review the trial court's determination of that issue under the deferential abuse of discretion standard. (People v. Hines (1997) 15 Cal.4th 997, 1038.)
We find no abuse of discretion in the trial court's determination that striking defendant's testimony and allowing him to testify anew with a different interpreter cured any prejudice he may have suffered from Mr. O'Connor's incompetent translation of his original testimony. It is presumed, in the absence of any indication in the record to the contrary, that the jury understood and followed the court's instructions, and that the court's admonition to disregard the excluded testimony therefore cured any prejudice from it. (People v. Hill (1992) 3 Cal.4th 959, 1011.) We find nothing in the record that would overcome this presumption.
Defendant argues that it is "unrealistic to think jurors would be capable of mentally segregating [defendant's] stricken, mistranslated testimony, from testimony given the second time around." We disagree. The jury was told in explicit terms that the original testimony they heard, as translated by Mr. O'Connor, did not accurately represent defendant's actual statements. The second time defendant testified, his statements in American Sign Language were translated for the jury in a different voice, that of Mr. McCombs. Of course, as defendant notes, "'"You can't unring a bell."'" (People v. Hill (1998) 17 Cal.4th 800, 845 [quoting People v. Wein (1958) 50 Cal.2d 383, 423 (dis. opn. of Carter, J.).) Extending the metaphor, however, we find no reason to conclude the jury could not tell the difference between two bells with different tones, and follow the trial court's instruction to pay attention only to one of them.
Furthermore, defendant can point to nothing in the initial, erroneous translation of his testimony that is particularly prejudicial to him. This is not a circumstance where the jury is being asked to pretend it never saw, for example, a gruesome photograph that it should never have been shown, or never heard an important bit of information that should have been excluded. To the contrary, defendant's first testimony, even as erroneously translated, tells substantially the same story as his correctly translated second testimony, although lacking in some detail due to the omissions and mistranslations identified by the second translator.
Defendant speculates that "[i]nconsistencies between the original and later translations of [defendant's] testimony may have been falsely attributed to [his] lack of candor or the fact that he had the opportunity for embellishment the second time around, rather than translation errors." The authority he cites in support of this notion, however, is inapplicable: In People v. Guerra (2006) 37 Cal.4th 1067, the defendant testified in English, without the services of a translator, but in a manner that "was riddled with inconsistencies" that the defendant attributed on appeal to prosecutorial misconduct with respect to the tone of questioning, which had led the defendant to become confused. (Id. at p. 1128.) The Supreme Court rejected the defendant's claim of prosecutorial misconduct, noting that the jury "could evaluate whether his inconsistencies were the result of his language difficulties or lack of candor." (Id. at 1128.) In the present case, the jury was not faced with a similar task of evaluating inconsistent statements by the defendant, but rather were told that the words originally presented to them as defendant's own by Mr. O'Connor did not reflect defendant's actual statements, and should be disregarded. Under these circumstances, we find no likelihood the jury would falsely attribute any inconsistencies to defendant, rather than the translator.
Defendant points out that Mr. O'Connor also translated the testimony of several other witnesses, including that of defendant's girlfriend, who is also deaf. Mr. McCombs, however, stated that he observed no substantial errors with respect to the translation of the testimony of the other witnesses that were not immediately corrected; yet another interpreter was providing some assistance to Mr. O'Connor in making corrections, for at least part of the proceedings. We note defendant's argument that Mr. McCombs may not have been monitoring Mr. O'Connor's performance as closely during the testimony of those other witnesses. Nevertheless, in the absence of any evidence the translation of that testimony was incompetent, defendant cannot show the trial court's factual determination in that regard—that only defendant's testimony was affected by problematic errors or omissions—to be error, let alone prejudicial error.
Because defendant failed to demonstrate incurable prejudice from the deficient performance of the translator of his original testimony, the trial court properly denied his requests for a mistrial.
C. Defendant Was Not Prejudiced by Use of a Single Interpreter for Some Portions of the Trial.
Defendant contends that the use of a single interpreter through portions of the proceedings below was in violation of his constitutional rights, and that he was prejudiced thereby. We agree that defendant was constitutionally entitled to two interpreters, and there was no valid waiver of the right. Defendant fails, however, to show any prejudice sufficient to require reversal.
1. Additional Background.
During various proceedings in the trial court—beginning after the hearing in which Mr. O'Connor's translation of defendant's original testimony was found deficient, and after which Mr. O'Connor's services were not again utilized—only a single interpreter was present in the courtroom. During closing arguments, defendant was provided a "virtual interpreter," an interpreter translating the proceedings remotely through a video monitor. At other times, however, the trial proceeded with only one interpreter, but with the understanding that defendant or defense counsel could signal to take a break in the proceedings at any time, if needed so the interpreter could assist in attorney-client communications. Defense counsel explicitly agreed to this system, apparently in consultation with defendant on at least some occasions; defense counsel first proposed it as a solution to the problem of the lack of a second interpreter. Defendant and defense counsel requested such a break in proceedings only once, during sentencing, at defendant's initiative.
2. Legal Principles and Standard of Review.
"The California Constitution, as interpreted by the California Supreme Court, makes it clear that a defendant is entitled to two interpreters, one to interpret the witnesses' testimony and the other to be the personal interpreter for the defendant." (Estrada, supra, 176 Cal.App.3d at p. 415 [citing Cal. Const., art. I, § 14 & People v. Aguilar (1984) 35 Cal.3d 785 (Aguilar)].) A defendant may waive this right, so long as he or she does so voluntarily and intelligently, but to be valid the waiver must be made by the defendant personally and on the record; the acquiescence of defense counsel to a different arrangement does not constitute a valid waiver. (Aguilar, supra, at p. 794.)
A deprivation of this right is subject to harmless error analysis; we "review the record as a whole to determine whether we can ascertain that any error was harmless beyond a reasonable doubt." (People v. Rodriguez (1986) 42 Cal.3d 1005, 1013 (Rodriguez).) Where there is "nothing on the face of the record . . . showing an interference in consultations between counsel and defendants or in defendants' ability to comprehend fully the witnesses' testimony . . . reversal is not mandated." (Id. at p. 1016, fn. omitted.)
Rodriguez notes that "habeas corpus may be utilized to offer any relevant evidence not appearing on the face of the record." (Rodriguez, supra, 42 Cal.3d at p. 1015.)
3. Analysis.
As an initial matter, we reject the People's argument that defendant forfeited his claim to a second interpreter by failing to object in the trial court. The authority the People cite in support of their argument is inapposite because, as it explicitly states, it "does not involve the state constitutional right of a non-English-speaking criminal defendant to be provided with a 'proceedings interpreter;' rather, it concerns alleged error involving 'witness interpreters.'" (People v. Romero (2008) 44 Cal.4th 386, 411.) Defendant objects specifically to the denial of that state constitutional right to a "proceedings interpreter," an argument that is not forfeited by defense counsel's acquiescence in the trial court. (Ibid.; Aguilar, supra, 35 Cal.3d at p. 794.) We turn, then, to the merits of defendant's claim of error.
Without doubt, defendant did not have the services of two interpreters for significant portions of the proceedings below, as constitutionally required. (See Estrada, supra, 176 Cal.App.3d at p. 415.) The People concede, and we agree, that the record does not expressly demonstrate a knowing and intelligent waiver of that right. The question, then, is whether anything on the face of the record shows an interference in consultations between counsel and defendant, or in defendant's comprehension of the proceedings. (Rodriguez, supra, 42 Cal.3d at p. 1013.) We answer the question in the negative: There is nothing on the face of the record that shows any particular instance when consultations between counsel and defendant was impaired by the presence of only one interpreter, or when defendant's ability to comprehend fully witness testimony or other proceedings in the courtroom was impaired. As was noted in Rodriguez, "[t]his is not to say that such difficulties could not or even did not arise. The record simply is barren of any indication of actual interruption of either defendant's communication or comprehension." (Id. at p. 1014, fn. omitted.)
Defendant notes that Rodriguez is distinguishable in some respects on its facts from the present case, because it involved two codefendants who were required to share a single interpreter. This difference, however, does not undermine the applicability of the general standards for evaluating prejudice from deprivation of the state constitutional right to a personal or proceedings interpreter, as distinguished from a witness interpreter, that the Rodriguez opinion articulates.
As defendant asserts, it would have been impossible for a single interpreter to contemporaneously translate witness testimony and help defendant communicate with his counsel. In this case, however, the trial court and the parties adopted a system whereby defendant or defense counsel could stop the proceedings at any point, so that the interpreter could assist them with communicating. The record demonstrates defendant understood this system, because he availed himself of it on one occasion. Such a system does not comport with the constitutional requirement of two interpreters, and does not demonstrate a valid waiver of that constitutional requirement. (Estrada, supra, 176 Cal.App.3d at p. 415; Aguilar, supra, 35 Cal.3d at p. 794.) It goes some distance, however, to showing that this is not a case where defendant was isolated from any means of communication or comprehension. (See Rodriguez, supra, 42 Cal.3d at pp. 1015-1016 [finding reversal not mandated because "[t]his is not a case where all means of communication or comprehension were absent; rather, an interpreter was at all times available and at hand"].) In the absence of any other indication in the record of actual interruption of defendant's communication or comprehension, the constitutional violation is harmless under the analysis articulated in Rodriguez.
Aguilar, supra, 35 Cal.3d at page 785, does not require a different conclusion. In Aguilar, defense counsel acquiesced, without consulting the defendant, to the court's direction that the interpreter who had been appointed to serve as the defendant's personal interpreter assist several witnesses called to testify for the proposition. (Id. at pp. 789-790.) The defendant was excluded from the discussion between the court, counsel for both sides, and the interpreter about using the interpreter's services in this way. (Id. at p. 794.) Furthermore, the Supreme Court found "the record does not support a conclusion that defendant knew he had a right to an interpreter throughout the proceedings." (Ibid.) No system was adopted to allow the defendant to stop the proceedings and receive the assistance of the interpreter as needed. (Id. at p. 795, fn. 11.) These circumstances combined to leave "the defendant isolated at counsel table, unable to consult his attorney and adrift in a 'babble of voices' . . . ." (Rodriguez, supra, 42 Cal.3d at p. 1014 [discussing Aguilar].) For the reasons discussed above, the circumstances of the present case are different, in each of these respects.
Defendant also points to several cases establishing it is "a constitutionally impermissible situation" that a defendant and his counsel have to interrupt proceedings in order to communicate. (People v. Carreon (1984) 151 Cal.App.3d 559, 570-571; see also People v. Menchaca (1983) 146 Cal.App.3d 1019, 1025.) We agree that, absent a valid waiver, it is a constitutionally impermissible situation. But Carreon and Menchaca do not control the prejudice analysis; the Supreme Court's opinion in Rodriguez does. Carreon applied an "informed speculation" standard for determining prejudice that was implicitly overruled by Rodriguez. (See People v. Chavez (1991) 231 Cal.App.3d 1471, 1477 [recognizing overruling of Carreon].) Menchaca is cited in Rodriguez as an example of a case where actual interruption of the defendant's (and his counsel's) communication and comprehension was discernible from the face of the record. (Rodriguez, supra, 42 Cal.3d at pp. 1014-1015.)
In short, although the use of a single interpreter in some of the proceedings in the trial court was constitutionally impermissible, and there was no valid waiver by defendant, the present record shows no prejudice under the standard articulated in Rodriguez. As such, reversal is not mandated.
D. Defendant's Right to Be Personally Present at All Critical Stages of the Trial Was Not Violated.
Defendant contends that his right to be present at all critical stages of trial was violated by several bench conferences held outside of the presence of the jury, and outside the presence of defendant, during his cross-examination. We find no violation of defendant's rights in this regard.
1. Additional Background.
Defendant complains of four occasions when he was personally absent from colloquies between the trial court and counsel for both the prosecution and defense, all relating to objections interposed by defense counsel during cross-examination of defendant. The first was after defense counsel objected that a prosecution question—regarding whether defendant and his girlfriend had children together—was impermissible as "[b]eyond the scope" of direct examination. The trial court initially agreed "[i]t's beyond the scope," but then asked to "speak with counsel outside for just a moment." After a discussion between the court and counsel during which defense counsel asserted, among other things, that defendant's Fifth and Fourteenth Amendment rights were violated by the question, the trial court overruled the objection.
Another discussion between counsel and the trial court outside of defendant's presence took place after defense counsel objected to a prosecution question about the facts of the March 5, 2010 residential burglary: "In March of 2010, you used your vehicle as a weapon in order to escape from [the victim]; isn't that right?" The trial court overruled the objection, but then asked to speak to counsel outside of the courtroom. Outside the courtroom, defense counsel elaborated that he objected to the question on various grounds, including the permissible scope of cross-examination, and defendant's right against self-incrimination (defendant had pleaded guilty only to residential burglary in connection with the incident, but defense counsel was concerned that the question elicited testimony that could support other charges for which there was no conviction, including assault with a deadly weapon), as well as the inadmissibility of character evidence to prove conduct on a specified occasion under Evidence Code section 1101, subdivision (a). After some discussion, the court's overruling of the objection stood; the proceedings resumed, the question was repeated, and defendant answered it: "Yes."
The third discussion outside the courtroom occurred when defendant objected to a prosecution question—"You did not call the police to report that you had been assaulted by these deputies, did you?"—on "Griffin-Doyle" grounds. The trial court sustained the objection, then invited the prosecutor and defense counsel to "step outside with madam court reporter." After a discussion, the prosecutor agreed that further questioning on the issue would be "very narrowly tailored."
"Griffin-Doyle" is a shorthand reference to two United States Supreme Court cases, establishing that the prosecution may not comment on a defendant's exercise of the right against self-incrimination. (See Griffin v. California (1965) 380 U.S. 609; Doyle v. Ohio (1976) 426 U.S. 610.)
Finally, a fourth discussion outside the courtroom occurred after the court sustained a defense objection based in part on Fifth Amendment grounds, as well as the permissible scope of cross-examination, to a question regarding the events of the morning of November 18, 2013, when defendant was found by police near his home. The prosecution started to argue the issue; the court requested to speak to counsel outside. After a discussion, the court adhered to its previous ruling and proceedings resumed, with the prosecutor asking no further questions of defendant.
None of the trial court's rulings on these objections have been challenged on appeal.
2. Legal Principles and Standard of Review.
A criminal defendant has a statutory and constitutional right to be present during such phases of trial as are important to his or her defense unless he or she is voluntarily absent. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; Pen. Code, §§ 977, subds. (b)(1), (2), 1043, subds. (a), (b); People v. Freeman (1994) 8 Cal.4th 450, 511.) However, "'[a] defendant . . . "does not have a right to be [personally] present at every hearing held in the course of a trial." [Citation.]'" (People v. Cleveland (2004) 32 Cal.4th 704, 741.) "[A] defendant's right to be present depends on two conditions: (1) the proceeding is critical to the outcome of the case, and (2) the defendant's presence would contribute to the fairness of the proceeding. [Citations.] Thus, a defendant may ordinarily be excluded from conferences on questions of law, even if those questions are critical to the outcome of the case, because the defendant's presence would not contribute to the fairness of the proceeding." (People v. Perry (2006) 38 Cal.4th 302, 312 (Perry).)
"An appellate court applies the independent or de novo standard of review to a trial court's exclusion of a criminal defendant from trial, either in whole or in part, insofar as the trial court's decision entails a measure of the facts against the law." (People v. Waidla (2000) 22 Cal.4th 690, 741.) The defendant bears the burden of showing that any erroneous exclusion from trial or part of it prejudiced his case or denied him a fair and impartial trial. (People v. Ervin (2000) 22 Cal.4th 48, 74; see People v. Clark (2011) 52 Cal.4th 856, 988 [applying federal "harmless beyond a reasonable doubt" standard to violation of personal presence rights].)
3. Analysis.
Each of the challenged colloquies center on questions of law; the permissible scope of cross-examination, in light of defendant's decision to testify in his own behalf, the permissible uses of character evidence, whether the prosecutor's line of questioning ran afoul of Griffen-Doyle's prohibition on prosecutorial comment on a defendant's exercise of his right against self-incrimination, and so on. As such, defendant was properly excluded from the discussions. (Perry, supra, 38 Cal.4th at p. 312.)
Moreover, defendant fails to show any prejudice from the lack of his personal presence. Two of the challenged colloquies outside of defendant's personal presence were related to defense objections that were sustained. On appeal, defendant articulates no basis for concluding that he could have been prejudiced by discussions outside of his presence that resulted in rulings in his favor. Nor does any prejudice appear from our review of the record.
The other two challenged colloquies were related to questions of a factual nature that had already been addressed by other witnesses; defendant's girlfriend testified that she and defendant had a child together; the victim of the March 2010 residential burglary testified that defendant had used his vehicle to ram his way out of the garage, nearly hitting the victim Thus, even if defendant had been personally present for those discussions, and his presence somehow resulted in the defense objection being sustained (a questionable proposition), the jury was presented with the same factual information. We find no possibility that the result of defendant's trial would have been any different in such a circumstance, so any arguable error—and we find none—would be harmless beyond a reasonable doubt.
E. The Trial Court Erred by Imposing a Prior Prison Term Enhancement Based on an Underlying Conviction That Had Been Reduced to a Misdemeanor Under Proposition 47.
Defendant contends that the trial court erred by imposing a prior prison term enhancement based on a conviction—his March 22, 2010, conviction for drug possession—that had been reduced from a felony to a misdemeanor pursuant to Proposition 47 before sentence was imposed with respect to his current convictions. We agree.
The recent case of People v. Abdallah (2016) 246 Cal.App.4th 736 (Abdallah) involves a similar direct attack on a prison prior enhancement. In Abdalah, as in the present case, the trial court had imposed a prison sentence for, among other things, an enhancement for a felony prison prior, just after it had reduced the relevant underlying felony to a misdemeanor. (Id. at p. 740.) Abdallah holds that the reduction of a prior felony to a misdemeanor pursuant to Proposition 47 precludes the trial court from subsequently relying upon it as the basis for imposing an enhancement under section 667.5, subdivision (b). (Abdallah, supra, at p. 746.) We agree with Abdallah's analysis.
This court has previously "assume[d], without deciding, that [section 1170.18,] subdivision (k) bars a post-Proposition 47 sentencing court from imposing a section 667.5, subdivision (b) enhancement based on a prior felony conviction that has been redesignated as a misdemeanor." (People v. Jones (2016) 1 Cal.App.5th 221, 228, review granted Sept. 14, 2016, S235901].) For the reasons stated in Abdallah and below, we decide this case consistent with our prior assumption.
As Abdallah points out, the California Supreme Court has described the elements required to qualify for a prison prior enhancement as follows: "the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." (People v. Tenner (1993) 6 Cal.4th 559, 563; see Abdallah, supra, 246 Cal.App.4th at p. 742.) And as Abdallah concludes, the first of those required elements is eliminated when the defendant's prior conviction is redesignated a misdemeanor "'for all purposes'" under section 1170.18, subdivision (k). (Abdallah, supra, at p. 746.)
In arguing for the contrary conclusion, the People assert that a prior prison enhancement is based on "'the defendant's status as a recidivist, and not on the underlying criminal conduct, or the act or omission, giving rise to the current conviction,'" quoting People v. Gokey (1998) 62 Cal.App.4th 932, 936. (In other words, the prison prior enhancement is directed not at those defendants who have committed prior felonies, but rather at those who were insufficiently deterred by having served a prior term in prison.
This argument, however, is inconsistent with the Supreme Court's statement in People v. Prather (1990) 50 Cal.3d 428 (Prather), that section 667.5, subdivision (b) "is aimed primarily at the underlying felony conviction, and only secondarily, as an indicium of the felony's seriousness, at the prior prison term." (Prather, supra, at p. 440.) Also, in a more recent opinion, People v. Jones (1993) 5 Cal.4th 1142, at page 1148, the Supreme Court rejected as "unpersuasive" a court of appeal opinion that described the purpose of section 667.5, subdivision (b) to be "to punish individuals" who have shown that they are "'hardened criminal[s] who [are] undeterred by the fear of prison.'"
The People quote In re Preston (2009) 176 Cal.App.4th 1109, 1115, for this language in People v. Jones, supra, 5 Cal.4th 1142, ignoring that In re Preston mistakes the Supreme Court's description of the underlying court of appeal decision, which the Supreme Court subsequently rejects as unpersuasive, for the Supreme Court's own holding. We must adhere to the holding of People v. Jones, supra, 5 Cal.4th 1142.
Put another way: Section 667.5 applies to punish recidivists more harshly, but not any and all recidivists. It is reserved only for those who have committed a felony, served a prison term, and reoffended within a certain period of time. (§ 667.5, subd. (b); In re Prather, supra, 50 Cal.3d at p. 440.) With the passage of Proposition 47, the voters have determined defendant's 2010 conviction should not have been a felony, and should be reduced to a misdemeanor "for all purposes," at least prospectively. (§ 1170.18, subd. (k); People v. Jones, supra, 1 Cal.App.5th at p. 228.) One consequence of this policy judgment is that defendant is no longer the type of recidivist section 667.5, subdivision (b) was enacted to punish, at least with respect to the conviction that was reduced to a misdemeanor (as noted, defendant has other prior felony convictions that were not affected by Proposition 47).
Our conclusions here are not in conflict with prior opinions of this court, among others, holding that Proposition 47 provides no procedure for the retroactive dismissal or striking of enhancements. (E.g. People v. Jones, supra, 1 Cal.App.5th at p. 228.)
In short, the reduction of defendant's March 22, 2010, conviction to a misdemeanor precluded the use of that conviction to support an enhancement under section 667, subdivision (b). The judgment must therefore be reversed with respect to that enhancement.
F. The Trial Court Did Not Err in Denying Defendant's Proposition 47 Petition with Respect to His 1996 Conviction for Receiving Stolen Property.
Defendant's petition for relief under Proposition 47 was not accompanied by any evidence establishing the value of the property at issue in his 1996 conviction for receiving stolen property. On that basis alone, the trial court's ruling denying the petition with respect to that conviction must be affirmed. (People v. Perkins (2016) 244 Cal.App.4th 129, 136-137 (Perkins) [defendant bears burden of establishing value of stolen property to show eligibility for relief under Proposition 47].)
We therefore need not and do not address defendant's other arguments challenging the trial court's ruling. --------
Defendant argues for the contrary position, that the absence of evidence in the record showing the value of the property exceeded the statutory amount of $950 means that the petition should have been granted. The issue of who bears the burden of proof on a Proposition 47 petition, however, is as settled as any issue in this unsettled area of the law. (Perkins, supra, 244 Cal.App.4th at pp. 136-137.) We find no appropriate reason to depart from the recently published opinion of this court on the issue.
As in Perkins, however, the law on the issue of whether the defendant bears the burden of establishing eligibility for relief under Proposition 47 was not settled when defendant filed his petition. He therefore should be permitted to file a new petition that seeks resentencing on the same conviction, but this time supported with the appropriate evidence establishing his eligibility. (Perkins, supra, 244 Cal.App.4th at pp. 141-142.)
III. DISPOSITION
The judgment is reversed with respect to the sentence enhancement imposed pursuant to section 667.5 based on defendant's March 22, 2010, conviction for drug possession. The judgment is affirmed in all other respects, without prejudice to consideration of a subsequent Proposition 47 petition that supplies evidence of his eligibility for relief with respect to his 1996 conviction for receiving stolen property.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J. We concur: MCKINSTER
J. MILLER
J.