Opinion
C083991
08-13-2018
THE PEOPLE, Plaintiff and Respondent, v. KEVIN DWAYNE LEWIS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F06722, 15F07003)
A jury found defendant Kevin Dwayne Lewis guilty of possessing methamphetamine in a prison and battery by a prisoner on a nonprisoner. On appeal, defendant contends (1) the trial court erred in denying a mistrial after a testifying officer violated the court's ruling excluding certain statements implicating defendant, and (2) the court erred in denying his request for a Pitchess hearing. We will affirm.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
I. BACKGROUND
While remotely monitoring the cameras in a prison visiting room, Officer Leavens became suspicious after noticing inmates who seemed to be watching prison staff. At one point, two inmates appeared to signal defendant, who was visiting with his girlfriend.
Officer Leavens watched defendant put his arm around his girlfriend. The girlfriend then appeared to hold defendant's sleeve as defendant pulled his right arm back into his shirt. Defendant's elbow was then seen poking through the back of his shirt. Next, defendant appeared to have his hand down the rear of his pants. Officer Leavens concluded defendant had put something in his rectal cavity.
Officer Leavens contacted a second officer, Officer Perez, and showed him the video footage. Officer Perez agreed defendant was trying to hide something in his rectal cavity.
Officer Perez went to the visitor floor, called for defendant, and ordered him to submit for handcuffing. Defendant said, "For what?" When the officer repeated the order, defendant punched him in the face.
Defendant was subdued, handcuffed, and placed in leg restraints. When he refused to walk, he was carried to a treatment room.
Before defendant was placed in the treatment room, a third officer, Officer Rodriguez, performed "a cursory search" of the treatment room. This was part of a normal practice because inmates commonly discard contraband to avoid being caught with it. The search of the room did not locate anything of note.
Still handcuffed, with his arms behind his back, defendant was placed on the treatment bed, in a seated position. Defendant moved and fidgeted, and eventually ended up lying on his side. He also appeared to be fidgeting behind his back. At one point, the smell of feces filled the room and lingered.
Defendant was eventually taken from the treatment room to an adjoining room for a further medical evaluation. Officer Rodriguez, suspecting there might be contraband in the original room, returned to that room.
There, Officer Rodriguez saw fecal matter on the treatment bed where defendant had been. Behind the treatment bed, against the wall, he found a bindle that had not been there before. The bindle's outer wrapping had feces on it. Officer Rodriguez searched defendant and found a "significant amount" of feces on defendant's underwear. The bindle contained methamphetamine.
The jury found defendant guilty of possessing methamphetamine in a penal institution and battery by a prisoner on a nonprisoner.
II. DISCUSSION
A. Request for Mistrial
On appeal, defendant first contends the trial court erred in denying a mistrial after a testifying officer intentionally violated the court's ruling excluding the girlfriend's statement implicating defendant.
Outside the jury's presence, defendant (who represented himself at trial) raised an objection to an upcoming witness: Officer Ramirez, who arrested and interviewed the girlfriend after the incident. Defendant objected, on hearsay ground, to the officer testifying to any statements the girlfriend made to him. The prosecutor responded that he did not intend to "get into anything about her statement whatsoever." The court replied: "So he's not offering that unless there was an exception. You win."
Officer Ramirez then testified that after the incident, he obtained the girlfriend's permission to search her car. The officer ultimately arrested the girlfriend for possessing a controlled substance.
On cross-examination by defendant, Officer Ramirez was asked the results of the search of the girlfriend's car. He responded: "To my knowledge, there was no further contraband discovered inside the vehicle." Defendant then asked about the results of the search of her cell phone. Officer Ramirez responded: "Off the top of my mind I can't remember the results. [¶] The reason for that search, your Honor, was because she had told me that she had spoken—." The court interrupted: "He'll just ask . . . [¶] . . . who did the search and what the result was." The officer replied: "Yes, sir."
Defendant continued questioning: "And if there were evidence of her introducing drugs into the prison on her phone, you would recall that, correct?" The officer responded: "Off the top of my head, at that point she admitted she had spoken with you on the cellular phone regarding this use—"
Both the prosecutor and the trial court interrupted. The trial court then admonished, "[a]ny statements by [the girlfriend] are disallowed. . . . [¶] . . . And it's up to the jury, as directed, not to speculate about any statements that are hearsay and not admissible in court."
Outside the jury's presence, defendant requested a mistrial. The prosecutor noted, there had been no actual admission, only an allusion to one.
The prosecutor confirmed he had told the officer not to mention the girlfriend's statements.
The court responded: "Frankly, it appeared to me Officer Ramirez was determined to get that into evidence, . . . he actually pushed on through the Court's attempting to stop him." Reviewing the transcript, the court noted, "The gravamen here is that she had spoken to [defendant] on the cell phone about the use." Defendant added that the reporter might have stopped transcription, and the statement had included a reference to bringing something.
The court, while noting the statement was inadmissible, found the immediate jury admonition brought the statement "below the level that would warrant the granting of a mistrial on its own."
Defendant responded: "Now, as far as [the girlfriend], I have to definitely put her on the stand based on that statement. I have to give her a chance to say why she admitted to whatever." He noted, "the jury is going to consider that . . . for the very reason that you're saying not to consider it. That's just human nature . . . we all tried to stop him, and so that, in the average person's mind, makes things stick out."
The court replied, "I don't disagree," but added that juries follow the court's instructions. It added, "if you want to present [the girlfriend], then you get to present [her], and we'll just see where this goes. . . . I have no advice for you regarding whether or not to put her on. That's a tactical decision on your part."
The girlfriend subsequently testified, denying she ever brought drugs into the prison or telling the officer she had. But she admitted pleading to possessing methamphetamine in a prison facility, though only to resolve the issue.
On cross, she admitted telling the officer she had talked to defendant on her cell phone. She also conceded she had held defendant's sleeve, so defendant could pull his arm out of his sleeve. But she denied any memory of telling the officer she had brought something for defendant and that she thought it was methamphetamine.
Later, outside the jury's presence, defendant asked for a mistrial or alternatively that the testimony of the officer who questioned the girlfriend be stricken. The court noted the officer had been "way out of line," and struck the officer's testimony.
On appeal, defendant contends the trial court erred in denying a mistrial after the officer violated the court's ruling excluding the girlfriend's statements. He argues, under the Aranda-Bruton line of cases, reversal is required. We disagree.
People v. Aranda (1965) 63 Cal.2d 518 (Aranda), abrogated in part by Cal. Const., art. I, § 28, subd. (d); Bruton v. U.S. (1968) 391 U.S. 123 (Bruton).
Bruton held admitting a nontestifying codefendant's confession implicating the defendant violates the confrontation clause's guarantee of the right to cross- examination—even if the jury is instructed to disregard the confession as to the defendant. (Bruton, supra, 391 U.S. at pp. 127-128, 135-137.) The Aranda court reached a similar conclusion on nonconstitutional grounds. (Aranda, supra, 63 Cal.2d at pp. 530-531; see also People v. Fletcher (1996) 13 Cal.4th 451, 455.)
Here, assuming without deciding that the Aranda-Bruton rule is applicable in defendant's case, reversal is not required. As defendant concedes, any Aranda-Bruton confrontation clause violation was cured when the girlfriend testified. (See Bruton, supra, 391 U.S. at p. 126 ["admission of [codefendant's] confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause"].)
Unlike in Aranda or Bruton, the challenged statement did not come from a codefendant in a joint trial. And the statement at issue is not ambiguously a confession: "she admitted she had spoken with you on the cellular phone regarding this use."
Undeterred, defendant maintains there exists a due process component of Aranda-Bruton, which was not cured by the girlfriend's testimony. In support, defendant notes that both the Aranda and Bruton courts relied on Jackson v. Denno (1964) 378 U.S. 368 (Jackson). Jackson held a New York practice of telling a jury to decide if a confession was involuntary—and if so to disregard it—violated due process. (Id. at pp. 374-375, 391.) The Jackson court questioned whether a jury could actually ignore a confession it had found involuntary. (Id. at pp. 388-389.) Defendant maintains that even if the Aranda and Bruton courts did not base their decision on due process grounds, their discussion of Jackson provides persuasive authority of a due process component. We cannot agree.
Ultimately, defendant can offer no authority recognizing or establishing a separate due process ground undergirding the Aranda-Bruton rule. Indeed, both the Aranda and Bruton courts, after considering due process, expressly relied on other grounds. (Aranda, supra, 63 Cal.2d at p. 530 ["In the absence . . . of a holding by the United States Supreme Court that the due process clause requires such change, the rules we now adopt are to be regarded, not as constitutionally compelled, but as judicially declared rules of practice to implement [Penal Code] section 1098"]; Bruton, supra, 391 U.S. at pp. 130, 135-137.) The fact that Aranda and Bruton cited Jackson for the risk of a jury relying on inadmissible statements does not compel a contrary conclusion.
See also People v. Washington (2017) 15 Cal.App.5th 19, 29-30 ["as noted above, neither Aranda nor Bruton ultimately relied upon due process as the basis for the rule they announced, defendant invites us to fashion a due process-based Aranda/Bruton doctrine. We respectfully decline this invitation, and do so for four reasons"]. --------
In sum, assuming the officer's testimony gave rise to Aranda-Bruton error, any violation of the confrontation clause was cured when defendant made the tactical decision to call the girlfriend to testify. Accordingly, the trial court's denial of a mistrial does not require reversal. B. Pitchess Motion Defendant next asks that we remand to hold a Pitchess hearing.
Before trial, defendant moved to discover information in the personnel files of two officers: the officer defendant punched (Officer Perez) and the officer who discovered the bindle of methamphetamine (Officer Rodriguez).
As to Officer Perez, defendant stated in a declaration that the officer had used excessive force the day of incident, and defendant had a constitutional right to use self-defense as a form of reasonable protection. Further, defendant alleged that Officer Perez filed a false report concerning a concussion he suffered from the incident. Defendant attached multiple reports to his motion. As to Officer Rodriguez, defendant stated he planted the bindle of drugs in the treatment room and lied about it in his report.
Before the court, defendant argued Officer Perez had claimed to have suffered a concussion, yet he later performed duties, including interviewing people and finishing his report, that were inconsistent with having a concussion. Further, Officer Perez never saw defendant with contraband or with his hand going into the girlfriend's bra before asking defendant to cuff up.
As to Officer Rodriguez, defendant argued no officer saw defendant excrete and discard the bindle, yet later when the officer was alone, he claimed to have found the bindle. Further, Officer Rodriguez wrote in his report: "I continued my search and discovered what I knew to be a large black bindle." Defendant argued the words "I knew to be" was a Freudian slip: "[I]f he hasn't seen it before, how does he know what it is?" Defendant also argued that none of the other officers' reports reflected that the room was searched before the incident.
Opposing the motion, the People noted the reports included in the motion all stated that defendant punched Officer Perez first, and defendant never stated otherwise. Further, one report reflected that the girlfriend confessed to bringing the bindle into the prison and thought it contained methamphetamine.
The trial court denied the motion, finding the affidavit failed to state good cause. As an example of how the claims failed to provide good cause, the court pointed to the allegation that Officer Perez was dishonest regarding his concussion. The court noted concussions can range in severity; it is possible to suffer a minor concussion and continue to function. Thus, there is no way to conclude that an officer who claims a concussion, yet continues to function, is being dishonest. The court noted defendant raised no factual scenario giving rise to good cause, and the sum and substance of the allegations was merely that the officers were lying.
On appeal, defendant contends he established good cause to review the records. Specifically, he claimed Officer Perez lied about what he saw in the video and used excessive force to restrain him. As corroboration, defendant alleges Officer Perez's activity after being punched was inconsistent with having a concussion. Further, defendant alleges Officer Rodriguez planted the bindle of drugs in retaliation for defendant defending himself. He avers that allegation was corroborated by his "report being inconsistent with other officers' reports, as well as containing a telltale reference to prior knowledge of the contraband." We disagree.
To obtain discovery of officer personnel files, a defendant must "file a motion supported by affidavits showing 'good cause for the discovery,' first by demonstrating the materiality of the information to the pending litigation, and second by 'stating upon reasonable belief' that the police agency has the records or information at issue." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) This two-part showing is a " 'relatively low threshold for discovery.' " (Ibid.)
Where the trial court has a defense affidavit along with police reports, the court determines whether the affidavit in conjunction with the police reports establishes " 'a plausible factual foundation' " for the alleged officer misconduct and articulates " 'a valid theory as to how the information sought might be admissible' " at trial. (Warrick, supra, 35 Cal.4th at p. 1025.) The defendant must present "a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents." (Ibid.)
"[A] plausible scenario of officer misconduct is one 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. . . . Once that burden is met, the defendant has shown materiality under [Evidence Code] section 1043." (Warrick, supra, 35 Cal.4th at p. 1026.)
We review the trial court's denial of a Pitchess motion for abuse of discretion. (People v. Cruz (2008) 44 Cal.4th 636, 670.)
Here, the trial court acted within its discretion in denying the Pitchess motion as to both officers. As to Officer Rodriguez, the court could reasonably conclude defendant failed to offer a plausible factual scenario when viewed in conjunction with the police reports. Defendant's scenario of the officer planting the bindle conflicts with the report of the girlfriend admitting bringing a black cylindrical object into the prison, which she thought contained methamphetamine. Given defendant did not address or explain the girlfriend's admission beyond averring to an illegal search and seizure, the trial court could reasonably conclude defendant's scenario of planting the bindle was not internally consistent. (See People v. Galan (2009) 178 Cal.App.4th 6, 11-12 [the defendant failed to present a plausible scenario of misconduct where he failed to dispute the report of his statements during interrogation, and those statements corroborated officers observations of his driving]; People v. Sanderson (2010) 181 Cal.App.4th 1334, 1340-1341 [good cause not stated where defendant failed to present an alternative version of certain facts related to the core of the charges against him]; People v. Thompson (2006) 141 Cal.App.4th 1312, 1317 [showing not internally consistent where defendant did not explain his own actions to adequately support his defense].)
As to Officer Perez, the trial court reasonably concluded defendant failed to articulate a factual scenario of misconduct. Defendant claimed the officer was dishonest. But as the trial court explained, claiming a concussion while performing later tasks is neither indicative of honesty nor dishonesty. Further, defendant's blanket claim of excessive force was divorced from any supporting factual scenario. Finally, defendant's averment that the victim lied about what he saw in the video is also internally inconsistent with the girlfriend's confession.
In sum, the trial court acted within the bounds of reason when it denied defendant's Pitchess motion as to both officers.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J.
We concur:
/S/_________
DUARTE, Acting P. J.
/S/_________
HOCH, J.