Opinion
A162846
03-14-2024
THE PEOPLE, Plaintiff and Respondent, v. ERICK LAMAR NELSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-170547-4.
CASTRO, J.[*]
Defendant Erick Lamar Nelson appeals his conviction for first degree murder and driving or taking a vehicle without consent. On appeal, Nelson argues his murder conviction must be reversed due to various evidentiary and constitutional errors. He also contends insufficient evidence supports his conviction for driving or taking a vehicle without consent. Finally, he requests this court review the Pitchess motion proceedings for error.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We agree insufficient evidence supports Nelson's conviction for driving or taking a vehicle without consent but otherwise affirm the judgment. We find no error in connection with Nelson's Pitchess motion.
I.
BACKGROUND
A. Factual Background
The victim, Pointsettia Love Gant-Parks, and Nelson began dating in September 2015. Her mother and various friends and coworkers described concerning behavior by Nelson toward Gant-Parks during their relationship. Nelson would curse at Gant-Parks and call her a "bitch." A coworker testified she saw Nelson at the Safeway where Gant-Parks worked "[o]n a daily basis," including observing him walking around the store looking for Gant-Parks and using her car while she was at work. The coworker recounted seeing them in Gant-Parks's car yelling, with Nelson hitting the dashboard. Gant-Parks's close friend, Robert Rawlings, recounted Nelson going to Gant-Parks's second job at a hair salon, where he "confronted her . . . and ripped her . . . wig off of her head in front of everybody in the store." Rawlings also described receiving a telephone call once from Gant-Parks in which she was "very, very frantic" and stated Nelson "was threatening to kill himself," "chasing after her," and telling her "that he had swallowed cleaning fluid or bleach of some sort." Her mother also described a telephone call from Gant-Parks, in which she was upset because Nelson was standing in front of her car preventing her from going to work.
Gant-Parks and Nelson broke up approximately one or two months before her murder. Nelson's friend, Michael Talton, informed police that Nelson was "heartbroken" and worried Gant-Parks would "snitch" on him to his parole officer for "fucking with her," "[trying to] harass her," and "[trying to] beat her ass and shit."
After breaking up, Gant-Parks asked Rawlings to return certain property to Nelson. Rawlings testified Nelson was upset that Rawlings, rather than Gant-Parks, was returning the items, and Nelson wanted to see Gant-Parks. When Rawlings informed Nelson "that wasn't going to happen," Nelson stated," 'I'm going to fuck up her life. I'm going to just fuck her life up.' "
A coworker also reported seeing Nelson hiding in the bushes by the Safeway where Gant-Parks worked after they broke up. Gant-Parks told Nelson to leave and that he "can't show up at her place of work," but the coworker noted Nelson returned. Another coworker testified Nelson would come into the Safeway and stare at Gant-Parks, which made her angry and afraid. And another coworker observed Nelson walk around the Safeway parking lot and punch through a taped-up window in Gant-Parks's vehicle.
At some point in May, Gant-Parks and Nelson began seeing each other again. Gant-Parks informed her mother she was pregnant with Nelson's baby.
Around 6:30 p.m. on May 15, a friend of Gant-Parks, Sandrena Monroe, testified she saw Gant-Parks with Nelson and sold her marijuana. Monroe stated she and Gant-Parks had connected over the fact that they "both were kind of trying to get-separate from domestic violence." She was "shocked" to see Gant-Parks "back with [Nelson]."
At 8:59 p.m. that evening, video footage showed Gant-Parks and Nelson walking around a Lucky's supermarket before she purchased a spiral notebook.
At 9:23 and 9:24 p.m., Gant-Parks and Rawlings exchanged text messages. At the time of these messages, Gant-Parks's cell phone was located in a geographic area that encompassed a park with a duck pond.
At 12:40 a.m., Gant-Parks called Monroe. Immediately thereafter at 12:41 a.m., Gant-Parks sent Monroe a text stating," 'Can you please call me as soon as possible? I have a problem.'" Again, at the time of these communications, Gant-Parks's cell phone was located in a geographic area that encompassed the duck pond.
Surveillance footage showed a vehicle leaving the area of the duck pond around 1:01 a.m., but the video quality made identification of the vehicle impossible.
Shortly after 1:00 a.m. on May 16, Nelson arrived at Talton's house. Talton lived approximately five minutes from the duck pond. Nelson was driving Gant-Parks's vehicle. Talton stated he did not find this unusual because Nelson often borrowed the car. Talton stated Nelson seemed normal, and he did not notice any blood or injuries or observe Nelson's clothing being wet.
Nelson left Talton's home around 2:00 a.m. Talton received two telephone calls at 4:42 a.m. and 4:53 a.m. from a number associated with Nelson's sister. Talton stated the woman was looking for Nelson. Calls from that same number were made to Gant-Parks's cell phone at 4:50 a.m. and 6:49 a.m. Later that morning, Nelson called Talton and asked if "it was hot," i.e., whether police were present. Nelson also told him to look at a local news blog site. Talton did so and saw an article about a female body being found in the duck pond. He deleted the number on his phone from which Nelson had called him.
Two individuals found Gant-Parks deceased in the duck pond at approximately 1:23 a.m. on May 16. Police responded to a 911 call and located the body in the water at approximately 2:30 a.m. A wig, later identified as Gant-Parks's, was located nearby. Police identified potential blood on a part of the pathway and a guardrail near the pond. The guardrail appeared to contain a "print." The police also located a radio, which had a "red-like substance" later determined to be blood, wrapped in a T-shirt in a nearby garbage can.
The autopsy revealed Gant-Parks suffered multiple skull fractures, a broken nose, a broken cheekbone, and broken bones around her left eye. The autopsy also revealed signs of "attempted strangulation" to her neck, swelling around both eyes, a torn frenulum and tongue, and bruises on her shoulder, flank, left upper arm, elbow, and forearm. The autopsy concluded her cause of death was "multiple blunt-force injuries," with attempted manual strangulation as another significant factor.
Police tested both the T-shirt and radio for DNA evidence, but the DNA on both objects did not match either Nelson or Gant-Parks. Fingerprint analysis matched the palm print on the guardrail to Nelson. However, Nelson's DNA was not found on the guardrail.
Nine days after Gant-Parks's murder, police located her vehicle in Stockton, approximately a mile from Nelson's sister's home. It had a broken window and appeared to have intentional fire damage to the front passenger seat, along with the burned remains of a spiral notebook. The fire investigator concluded someone burned the spiral notebook intentionally to start the fire.
B. Procedural Background
The Contra Costa County District Attorney filed an information charging Nelson with murder (Pen. Code, § 187, subd. (a); count 1) and vehicle theft (Veh. Code, § 10851, subd. (a); count 2). The information further alleged Nelson had suffered two prior convictions that constituted prior strikes and serious felonies. (Pen. Code, § 667, subds. (a)(1), (d)-(e).)
The jury found Nelson guilty of first degree murder and vehicle theft. The trial court subsequently found true the special allegation regarding Nelson's prior convictions. The trial court sentenced Nelson to a prison term of 25 years to life for murder, tripled for the two prior strike convictions, a two-year concurrent term for the vehicle theft conviction, and five years for each of the prior serious felony convictions. Nelson timely appealed.
II. DISCUSSION
Nelson raises five issues on appeal: (1) the trial court erred by allowing the fingerprint expert to testify regarding another analyst's verification; (2) the trial court improperly admitted prejudicial hearsay evidence regarding statements by Gant-Parks; (3) the trial court improperly excluded DNA and CODIS database evidence that supported the defense; (4) the trial court improperly admitted evidence of uncharged prior conduct; and (5) insufficient evidence supported his conviction for driving or taking a vehicle without consent. Finally, Nelson requests this court review the sealed transcript and documents from his Pitchess motion to determine any procedural error or abuse of discretion.
" 'CODIS is the acronym for the "Combined DNA Index System" and is the generic term used to describe the FBI's program of support for criminal justice DNA databases as well as the software used to run these databases.'" (People v. Xiong (2013) 215 Cal.App.4th 1259, 1266, fn. 4.)
A. Confrontation Clause
Nelson first asserts the trial court erred by allowing a fingerprint expert to testify another analyst verified her opinion that the print was from Nelson. He contends this statement constituted testimonial hearsay and violated his rights under the confrontation clause.
1. Relevant Background
Kathryn Novaes from the Contra Costa County Sheriff's Department crime laboratory analyzed photographs of the print found on the guardrail at the duck pond. Novaes testified as an expert in fingerprint analysis, comparison, and identification.
Novaes initially analyzed the print as a fingerprint and was unable to make an identification. She then analyzed the print as a palm print. Novaes concluded Nelson's right palm was the likely source of the print on the guardrail. In her opinion, "the right palm of Erick Nelson made the print." Novaes submitted her report to a colleague, Scott Genove, to verify her findings. Such verification is part of the standard fingerprint comparison procedures utilized by Novaes. Novaes testified that once she completes her "analysis," "comparison," and "evaluation" (ACE) steps, the print is given to a "verifier," who conducts a separate "ACE process," with the verifier's goal being whether they "can prove the other analyst wrong." If the verifier agrees with the analyst, they "sign as a verifier, do [their] own documentation and then move it on back to the analyst for them to close out their report." Defense counsel did not object to any of Novaes's testimony regarding these procedures or the role of a verifier.
The prosecutor then asked Novaes whether Genove "sign[ed] off on [her] report." Defense counsel objected on hearsay grounds, and the court overruled the objection. Novaes then responded, "Yes."
2. Analysis
As an initial matter, the parties dispute whether Nelson forfeited this issue. Generally, the failure to raise an objection based on the confrontation clause forfeits the argument on appeal. (People v. Redd (2010) 48 Cal.4th 691, 730.) An objection on hearsay grounds does not necessarily preserve a confrontation clause claim for appellate review. (See People v. Rangel (2016) 62 Cal.4th 1192, 1216-1217 ["A Crawford objection generally requires a court to consider whether statements are testimonial, and, if so, whether a witness was unavailable and the defendant had a prior opportunity for crossexamination. This invokes different legal standards than, for example, a hearsay objection, which generally requires a court to consider whether the foundational requirements for admission of particular hearsay have been satisfied."].) Here, Nelson asserted a hearsay-not confrontation clause- objection. We thus conclude he forfeited his claims under the confrontation clause.
Crawford v. Washington (2004) 541 U.S. 36.
However, Nelson argues in the alternative that his counsel's failure to object on confrontation clause grounds constituted ineffective assistance of counsel.
" '[A] defendant claiming a violation of the federal constitutional right to effective assistance of counsel must satisfy a two-pronged showing: that counsel's performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.'" (People v. Woodruff (2018) 5 Cal.5th 697, 736.)
Here, we need not address whether counsel's performance fell below an objective standard of reasonableness under prevailing professional norms because Nelson has failed to demonstrate prejudice. To establish prejudice, "[i]t is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.'" (Harrington v. Richter (2011) 562 U.S. 86, 104.) To show prejudice, Nelson must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland v. Washington (1984) 466 U.S. 668, 693-694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) "The likelihood of a different result must be substantial, not just conceivable." (Harrington, at p. 112; see also People v. Rogers (2016) 245 Cal.App.4th 1353, 1367.)
Here, it was not reasonably probable that the jury would have reached a different verdict in the absence of Novaes's statement that Genove "sign[ed] off on [her] report." The challenged testimony consisted of one question- whether Genove signed off on the report-and answer-"Yes." The vast majority of Novaes's testimony addressed her analysis and conclusion, and a discussion of the procedures used in conducting her analysis. As part of that general testimony, Novaes explained it was standard practice to have a second analyst review and verify findings. Accordingly, even without the contested question, the jury would have been aware that her report would have been reviewed and verified by another analyst as part of the standard protocol.
Moreover, other evidence at trial supported the verdict. The record indicated (1) Monroe had seen Nelson with Gant-Parks earlier in the evening and Gant-Parks was driving her vehicle; (2) later that same evening Nelson was again seen with Gant-Parks at a Lucky's supermarket; (3) less than 30 minutes after being seen together in the Lucky's supermarket, Gant-Parks's phone was located in a geographic area that encompassed the duck pond and continued to be in that location at 12:41 a.m.; (4) a vehicle left the area of the duck pond around 1:01 a.m.; and (5) shortly after 1:00 a.m., Nelson arrived at Talton's house-located approximately five minutes from the duck pond-without Gant-Parks but driving her vehicle. The record further indicates Gant-Parks and Nelson had an unstable relationship, and the attack that killed Gant-Parks was a prolonged assault, involving attempted strangulation, significant injuries to the mouth and tongue, a broken nose, her wig being ripped off, and various other injuries to her upper body and head.
Nelson argues the evidence was prejudicial because it went to the identity of the perpetrator. But the prosecution was entitled to rely on Novaes's analysis finding that the palm print matched Nelson. Her analysis is not at issue. Likewise, Nelson did not contest Novaes's right to testify as to the general protocols she utilizes in conducting her print analysis, including that all analyses are subject to verification and what that verification process entails. The only dispute is over the single sentence in which she confirmed Genove verified her results. Nelson has failed to demonstrate this statement was a key component of the prosecution's case or an important factor in the jury's deliberations.
We therefore conclude it is not reasonably probable that had the court excluded Novaes's statement about Genove's verification, which tracked her prior testimony that all analyses go through a verification process, Nelson would have received a more favorable result.
All further statutory references are to the Evidence Code.
Nelson next argues the trial court erred by admitting witness testimony that Gant-Parks was afraid of Nelson. Nelson asserts Gant-Parks's state of mind was not relevant to any issues in dispute.
1. Relevant Background
During trial, the prosecutor asked Rosalie Smith, one of the Gant-Parks's coworkers, whether she ever told Smith "that she did not want to be alone with" Nelson. Defense counsel objected based on "[h]earsay" and "[r]elevance." The trial court overruled the objection, explaining, "I'm going to let the witness testify. It's offered and received by the Court to show the declarant's state of mind as long as you can show that it was at a relevant time period." Smith then testified Gant-Parks stated she was "parking her car around the corner . . ., 'Because I'm afraid.'" Smith stated Gant-Parks made these statements toward the end of May.
Later in the trial, the prosecutor asked Rawlings, "Did [Gant-Parks] tell you that she actually feared [Nelson]?" Defense counsel again objected based on "[r]elevance and hearsay." The court overruled the objection, and Rawlings responded, "Yes. After the incident at the hair salon, she did tell me that she had fear of him." When the prosecutor asked about the incident at the salon, defense counsel reasserted the hearsay objection. The prosecutor argued the question "[g]oes to her state of mind." The court again overruled the objection, but "[s]ubject to a motion to strike." Rawlings then described an incident in which Nelson confronted Gant-Parks and "ripped her . . . wig off of her head in front of everybody in the store, and that was very humiliating and a scary experience."
When the prosecutor asked about any other instances in which Gant-Parks expressed fear regarding Nelson, the court stopped questioning and stated, "I think I'm going to sustain that objection at this point."
2. Analysis
"Evidence Code section 1250, subdivision (a) provides in relevant part that 'evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation . . . is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.' 'If offered to prove the declarant's state of mind, the statement may be introduced without limitation, subject only to section 352.'" (People v. Dworak (2021) 11 Cal.5th 881, 906-907.)
"[W]e review trial court decisions about the admissibility of evidence for abuse of discretion. Specifically, we will not disturb a trial court's admissibility ruling' "except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." '" (People v. Morales (2020) 10 Cal.5th 76, 97.)
On appeal, the Attorney General argues Gant-Parks's state of mind was relevant as to whether she would have voluntarily lent her car to Nelson on the evening of her murder. Nelson argues to the contrary. Specifically, Nelson contends the record demonstrates he regularly accessed her vehicle, and thus Gant-Parks's state of mind was irrelevant. We disagree. The question of why Nelson was driving Gant-Parks's vehicle was certainly relevant. During their relationship, the record indicates Nelson would sometimes use Gant-Parks's vehicle and slept in the vehicle. However, the record does not indicate Gant-Parks allowed Nelson to have continued access to her vehicle after they broke up. Rather, the record reflects that Gant-Parks returned all of Nelson's belongings to him via Rawlings. She called police when Nelson punched through some tape covering a hole in her vehicle's window. She started parking in different locations at work to avoid Nelson. In light of her changed behavior toward Nelson's use of her vehicle, Gant-Parks's state of mind was relevant to Nelson's subsequent possession of her vehicle immediately after her murder. We thus cannot conclude the trial court's decision to admit such evidence constituted an abuse of discretion.
Because we conclude the court did not err in admitting such testimony, we need not address the parties' arguments regarding prejudice.
We also reject Nelson's due process argument. Our Supreme Court has rejected efforts to inflate "garden-variety evidentiary questions into constitutional ones." (People v. Boyette (2002) 29 Cal.4th 381, 427.) A due process violation occurs only where evidentiary error results in the complete preclusion of a defense. (Id. at pp. 427-428.) We find no evidentiary error, nor any constitutional violation.
C. Exclusion of Evidence
Nelson next asserts he was impeded from arguing to the jury that the police conducted an inadequate investigation because the trial court erroneously excluded evidence relating to unknown DNA found on a T-shirt near the site of the murder. Nelson contends the trial court did not properly assess the relevance of the evidence prior to excluding it because it did not make findings related on two "preliminary facts": (1) whether the T-shirt contained both female and male DNA or only male DNA; and (2) whether the lab or the police prevented the DNA profile from being uploaded to the CODIS database.
1. Relevant Background
As discussed above, the police discovered a T-shirt with blood, wrapped around a radio, in a garbage can near the murder scene. The criminalist who processed the shirt testified she tested it for blood and took a DNA swab from the interior neckline of the shirt. She further testified the shirt tested positive for blood, but neither sample matched Nelson.
Defense counsel subsequently requested that the court allow her to elicit information that the DNA testing on the T-shirt revealed a "full male profile for someone other than Mr. Nelson." When the court asked why defense counsel needed to "point out that it belonged to another man," she asserted, "[I]t's not just insufficient to show it's my client's profile. It's actually different from my client's profile....And then it leads to what I think is the next line of questioning, which is that that profile was capable of being loaded into the CODIS database and that the lab was unable to do so based on contacts with law enforcement."
The parties then disagreed as to (1) whether the DNA sample contained both an unknown female and male profile, or only a male profile; and (2) whether it was law enforcement or the lab that declined to upload the profile to the CODIS database.
The court again noted "that neither the blood nor the wearer DNA matched your client. That is in evidence." The court explained it "is not relevant" that the DNA was from an unknown male because the shirt "has no connection to the crime."
Defense counsel acknowledged the police determined the T-shirt had no connection to Nelson or Gant-Parks, but stated she would like to clarify that "no other female DNA was found on [the T-shirt]. It was all male." While the prosecutor disputed this fact, the court asked, "What difference does that make? Because the perpetrator could have been a female." Defense counsel responded, "I want to make the record clear." Defense counsel also argued "the jury should be entitled to hear [the police] had a profile they were capable of loading into CODIS" because "it was found at the scene and they . . . neglected to do so."
The court denied defense counsel's request. It explained, "[Y]ou have now presented no evidence connecting the T-shirt or the genetic material on the T-shirt to this crime. And, in fact, you would be able to find genetic material all over that park....[A]nd if you cannot make any kind of a showing that connects any of that genetic material to the crime, then the- Court is, under [section] 352, going to exclude that kind of inquiry. [¶] You have pointed out that the material on the shirt excludes your client. And I guess the People are going to point out it excludes [Gant-Parks]. And that is the end of inquiry with regards to this piece of information ....Just like the park bench down the . . . lane, the tree across the way, everything else that has genetic material in the park that has no connection to the crime is not going to be questioned in this case."
2. Analysis
"Generally, 'all relevant evidence is admissible.' [Citation.] Yet, '[s]ometimes the relevance of evidence depends on the existence of a preliminary fact.' [Citation.] A judge screening proffered evidence under section 403 excludes it only upon a finding that the showing of such a preliminary fact' "is too weak to support a favorable determination by the jury."' [Citation.] [¶] A defendant's identity as the person who committed an uncharged act is a classic example of a preliminary fact necessary to establish relevance. If it cannot be shown that the defendant did the uncharged act, the fact that 'somebody' did it is irrelevant." (People v. Cottone (2013) 57 Cal.4th 269, 283-284.)
Here, Nelson mischaracterizes the relevant "preliminary fact" as whether the T-shirt contained only male DNA or a mix of male and female DNA. But Nelson fails to explain why the presence of only male DNA would be significant. Rather, the relevant "preliminary fact" is whether the T-shirt could be connected to the crime via either Nelson or Gant-Parks. If such a connection could be made, then the presence of unknown DNA would certainly be relevant. However, as the trial court aptly noted, defense counsel "presented no evidence connecting the T-shirt or the genetic material on the T-shirt to this crime." For this same reason, defense counsel's argument regarding the CODIS database fails-the issue is whether the T-shirt could be connected to the crime.
Nelson argues the court implicitly found that male and female DNA were on the T-shirt when it excluded the evidence. To the contrary, the court asked, "What difference does that make," and based its ruling on Nelson's failure to connect the T-shirt to the crime.
Nelson's reliance on People v. Simon (1986) 184 Cal.App.3d 125 is misplaced. In Simon, the defendant shot a man in his former girlfriend's home and claimed self-defense. (Id. at pp. 127-128.) Over defense objections, the prosecution introduced evidence of a prior incident in which the defendant pulled a gun on a drug dealer in his girlfriend's house. (Id. at pp. 128-129.) The defense argued the prior incident was not relevant because the defendant acted out of concern for his girlfriend, and the alleged motivation behind the current murder was jealousy. (Id. at p. 130.) The appellate court agreed, finding the earlier assault would only be admissible if it had been committed with the same motive, i.e., jealousy. (Id. at pp. 130131.) Accordingly, the court reversed so the trial court could evaluate "the sufficiency of the evidence indicating that he assaulted [the drug dealer] for jealous motives." (Id. at p. 132.)
Here, the question was simply whether the T-shirt could be connected to the murder. The composition of DNA on the shirt was irrelevant if it could not be connected to the crime. While Nelson asserts the parties had "starkly different evidentiary scenarios" regarding the DNA on the shirt and the process of uploading that information to CODIS, Nelson has not demonstrated how those disputes impact the trial court's determination of the shirt's relevance. Accordingly, we cannot conclude the trial court erred in excluding the evidence.
Because we do not find any error, we do not address Nelson's arguments regarding remedy and prejudice. Nor do we reach Nelson's constitutional arguments. (See People v. DeSantis (1992) 2 Cal.4th 1198, 1249-1250 [exclusion of irrelevant evidence does not violate a defendant's constitutional rights].)
D. Prior Uncharged Conduct
Next, Nelson argues the trial court erred in allowing evidence regarding potential uncharged domestic violence in his and Gant-Parks's relationship, including instances of name calling, assault, and stalking.
First, Nelson asserts section 1109, which allows such evidence, violates his due process rights. This argument has been thoroughly rejected by numerous courts. In People v. Falsetta (1999) 21 Cal.4th 903, the California Supreme Court rejected a constitutional due process challenge to section 1108, a parallel statute, which applies to prior sexual offenses rather than prior domestic violence. Numerous Courts of Appeal have applied Falsetta to reject similar constitutional due process challenges to section 1109. (See, e.g., People v. Brown (2000) 77 Cal.App.4th 1324, 1329; People v. Hoover (2000) 77 Cal.App.4th 1020, 1024; People v. Jennings (2000) 81 Cal.App.4th 1301, 1305; People v. Reyes (2008) 160 Cal.App.4th 246, 249253; People v. Price (2004) 120 Cal.App.4th 224, 240-241.)
Nelson acknowledges as much, but states they are "wrong."
We agree with the reasoning and results in the above-referenced cases. The constitutionality of section 1109 under the due process clause of the federal and state Constitutions is well settled. We therefore reject Nelson's constitutional challenge.
Second, Nelson argues reversal is required because the trial court instructed jurors that such propensity evidence need only be proved by a preponderance of the evidence rather than beyond a reasonable doubt. But this argument also has been rejected by the California Supreme Court. In People v. Reliford (2003) 29 Cal.4th 1007, the court rejected this argument in connection with an identical preponderance of the evidence standard in section 1108. (Reliford, at p. 1016.) We are bound by that precedent and, for the reasons set forth in Reliford, reject Nelson's argument.
E. Cumulative Error
Nelson argues the combination of alleged evidentiary and constitutional errors discussed in parts II.A.-D., ante, are sufficient to require reversal." 'Under the cumulative error doctrine, the reviewing court must "review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence."' [Citation.] 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." '" (People v. Mireles (2018) 21 Cal.App.5th 237, 249.)
As discussed above, any errors in this case were relatively minor and not prejudicial. Moreover, substantial evidence supports the judgment, and it is not reasonably probable the result would have been different had there been no error. (See People v. Mireles, supra, 21 Cal.App.5th at p. 249.) Nelson received due process and a fair trial, and we accordingly reject his claim of cumulative error.
F. Substantial Evidence (Count 2)
Nelson was charged and convicted of driving or taking a vehicle without consent (count 2). He contends insufficient evidence supports the conviction. We agree.
1. Relevant Background
Joseph Silva testified he started his diesel Ford truck in his driveway and left it to warm up. Shortly thereafter he heard someone drive off with the vehicle, but he did not see who took the truck.
Later that day, Jacob Greiner and a friend were driving eastbound on Interstate 80 to Reno when they observed a truck crash and roll. They pulled over to check on anyone in the truck. Nelson had been driving the truck. Greiner offered to drive Nelson to a hospital, but Nelson asked to be dropped off in Reno. Greiner did not remember the color of the truck, but noted it looked "totaled."
Late that evening, a police officer called Silva and stated his truck had been found near Truckee. When Silva went to recover his truck, he found it had been "absolutely demolished. The cab was all the way to the seat. The person driving it, I thought he was dead because it was that bad a shape."
2. Analysis
The Attorney General argues the jury properly found Nelson guilty of the unauthorized taking and driving of Silva's vehicle based on evidence that (1) Nelson crashed a truck in Truckee, and (2) Silva's vehicle was stolen and subsequently crashed in Truckee on that same day. The Attorney General asserts the jury "could reasonably infer" the truck Nelson crashed was Silva's.
We disagree. No evidence was presented to establish that Nelson either drove or took Silva's vehicle. Although Silva testified his vehicle was stolen, he did not see who stole it. Likewise, the police only found Nelson in Reno-they never saw him in possession of any vehicle. And Greiner's testimony only connected Nelson to a "truck." Greiner gave no details about the make, model, or color of that truck. Nor did he identify Silva's truck as the one he saw Nelson crash.
The other evidence cited by the Attorney General likewise does not constitute substantial evidence to support the jury's verdict. The Attorney General argues Nelson was indigent, often used Gant-Parks's car, and left the scene of the crash. But these facts provide no insight into whose truck he was driving. Similarly, Silva's testimony that the driver who crashed his vehicle was in the hospital was inconsistent with the fact that Nelson did not go to the hospital after his crash.
Based on the foregoing, we cannot conclude substantial evidence supports the jury's verdict and would allow a rational trier of fact to find Nelson guilty beyond a reasonable doubt. We thus reverse the verdict on count 2.
G. Pitchess Motion
Nelson asserts this court should perform an objective review of the sealed records to determine if the trial court erred in refusing to provide evidence of police misconduct. Following our review, we find no error.
1. Relevant Background
Nelson filed a pretrial Pitchess motion seeking discovery of documents in the personnel files of Detective Pardella and Detective Mahan. With respect to these officers, Nelson sought records and complaints concerning excessive force, aggressive behavior, illegal detentions, falsification of evidence, charges, or police reports, or any other misconduct constituting moral turpitude. Nelson also sought contact information for any such complainants, records of discipline for any misconduct or prior acts involving moral turpitude, and any other "material which is exculpatory or impeaching within the meaning of Brady v. Maryland (1963) 373 U.S. 83."
Defense counsel submitted a declaration of good cause for the abovedescribed discovery. She declared upon information and belief that "Detectives Mahan and Pardella were biased and incomplete in their investigation of this case." She noted various shortcomings of the investigation, including (1) failing to obtain various surveillance evidence; (2) failing to investigate other possible suspects, including an abusive exboyfriend, a newer boyfriend, and the witnesses who reported Gant-Parks's body; (3) failing to investigate other "possibly related offenses in the crime scene location"; and (4) failing to fully pursue forensic testing for other items of evidence. The declaration also asserted the officers demonstrated prejudice and bias when interviewing various witnesses.
Counsel further declared, "[A]t issue here[] is identity.... [¶] . . . Reasonable doubt as to the identity of the perpetrator provides a defense to this charge. [¶] . . . Evidence of police bias toward [Nelson] and failure to effectively investigate other suspects or exculpatory evidence is highly relevant to the confidence the jury should place in the prosecution's case."
The court subsequently conducted an in camera hearing on October 28, 2020 (Pitchess hearing) regarding the officers' records and concluded as to both officers "there are no records of any complaints, so there's nothing in any of the categories that you have listed that I have found that there was a good cause showing." The court ordered the records to be sealed and placed in the court files.
On appeal, the trial court failed to transmit the sealed records. This court ordered the trial court to either (1) review the sealed materials from the Pitchess hearing and file a sealed supplemental clerk's transcript consisting of the records provided by the custodian of records for the City Attorney of Concord (custodian of records); or, if such records are unable to be located, (2) obtain the documents from the custodian of records, hold a confidential in camera hearing to settle the record, and prepare a confidential settled statement stating (a) whether the records received from the custodian of records are the same records the court examined at the Pitchess hearing; (b) whether any other records were examined at the Pitchess hearing that were not received from the custodian of records, and describe the contents of those missing records as completely as possible within the court's recollection; and (c) any other pertinent information.
The trial court conducted a new hearing pursuant to this court's order in which the custodian of records performed a new search for responsive documents and testified under oath. The custodian of records stated he searched for records "that pertain[ed] to complaints of any kind, dishonesty, excessive force, racism or anything like that" for both officers and did not locate any responsive records. The custodian of records also confirmed he searched for and was unable to locate any records related to "coercive conduct . . ., fabrication, lying[,] and bias." Accordingly, the custodian of records stated he only brought the officers' personnel files, which merely contained performance reviews and notes of training received." The custodian of records also stated he believed the lack of responsive records "was the situation back in October of 2020 when the Pitchess [hearing] was held."
The city attorney stated she reviewed the handwritten notes in the city attorney file from the Pitchess hearing. She stated those notes indicated the court found certain areas of good cause-coercive conduct, fabrication, lying, and bias as to both officers-and then "the note says, no disclosure. [¶] So our office's records show that nothing was disclosed or appropriate to be disclosed at the hearing."
The trial court subsequently prepared a settled statement based on this hearing and concluded, "None of these records are relevant to any Pitchess issues and contain nothing to be disclosed."
2. Legal Standard
A defendant is entitled to discovery of a police officer's confidential personnel records that contain information related to the defendant's defense, upon a showing of good cause. (Pitchess, supra, 11 Cal.3d at pp. 537-538; §§ 1043-1045.) Good cause for discovery exists when a defendant shows materiality to the subject matter and a reasonable belief that the agency has the type of information sought. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016.) If the defendant makes the requisite showing, the trial court must conduct an in camera review of the records and allow discovery of relevant material. (People v. Thompson (2006) 141 Cal.App.4th 1312, 1316.) The trial court's ruling on a Pitchess motion is subject to reversal only if the defendant demonstrates that the court abused its discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
3. Analysis
Based on our review of the in camera proceedings, we conclude the trial court adequately complied with the procedural requirements of a Pitchess hearing. A court reporter was present, and the custodian of records was sworn prior to testifying. (People v. Yearwood (2013) 213 Cal.App.4th 161, 180.)
We also reviewed the confidential settled statement. As discussed above, the record indicates the trial court found good cause for discovery, but no responsive documents existed. There was no determination by the court that evidence of police misconduct should not be produced. Thus, the trial court did not err in denying disclosure.
III.
DISPOSITION
The verdict finding Nelson guilty of driving or taking a vehicle without consent is reversed. In all other respects the judgment is affirmed.
WE CONCUR: HUMES, P. J., BANKE, J.
[*] Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.