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People v. Portee

California Court of Appeals, Sixth District
Feb 2, 2011
No. H035789 (Cal. Ct. App. Feb. 2, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. DAVID BERNARD PORTEE, Defendant and Appellant. H035789 California Court of Appeal, Sixth District February 2, 2011

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No.80888

ELIA, Acting P. J.

In 1981, David Portee (Portee) was charged in a 21 count information with rape (count one victim Debbie M., count six victim Darlene M. and count 12 victim Pamela R.), robbery (count two victim Debbie M., count seven victim Darlene M., count 10 victim Lynda D. and count 13 victim Pamela R.), kidnapping (count three victim Debbie M., count eight victim Darlene M., count 11 victim Lynda D. and count 14 victim Pamela R.), false imprisonment (count four victim Barbara G.), attempted kidnapping (count five victim Barbara G.), oral copulation with force (count nine victim Lynda D.), assault with intent to commit rape (count 15 victim Barbara G.), kidnap for robbery (count 17 victim Debbie M., count 18 victim Darlene M., count 19 victim Lynda D., count 20 victim Pamela R.) and receiving stolen property (count 16).

We have taken judicial notice of the verdict forms in Santa Clara County Superior Court case number 80888, the sentence imposed and other court records.

On June 22, 1982, the jury returned guilty verdicts on counts one, two and 17 involving Debbie M.; counts 12, 13 and 20 involving Pamela R.; counts four, five and 15 involving Barbara G.; and count 16. On July 20, 1982, Portee was sentenced to a determinate term of 22 years, eight months consecutive to two life terms that were imposed for the kidnap for robbery convictions of Debbie M. and Pamela R.

Portee appealed his conviction. The judgment was affirmed in its entirety with the exception of a $107 restitution fine that was not authorized by statute.

We have taken judicial notice of Portee's appeal to the First District Court of Appeal in case number A019906, which was his appeal of right from his judgment of conviction in Santa Clara County Superior Court case number 80888.

Subsequently, on April 5, 2007, after a decision by this court, the Santa Clara County Superior Court granted Portee's request for appointment of counsel to pursue DNA testing as provided in Penal Code section 1405. The Northern California Innocence Project (NCIP) was appointed to represent Portee.

It appears that the NCIP determined that any evidence that could have been tested in Portee's case had been destroyed by either government agencies or the victim. Specifically, the NCIP discovered that all property in the case had been destroyed on April 19, 1991.

The record shows that the NCIP wrote to Judge Cunningham explaining that because the evidence in this case had been destroyed there was not a " 'reasonable probability' that the DNA testing would produce different results in this case" and requested that their appointment be terminated. According to Judge Cunningham's January 31, 2008 order, of which we have taken judicial notice, Portee wrote to the Judge and suggested that the NCIP should remain counsel or other counsel should be appointed so that a Trombetta/Youngblood motion could be filed based on the loss or destruction of the evidence. Judge Cunningham denied the relief requested. He determined that there was no statutory basis for Portee's request and no Trombetta/Youngblood motion would lie on the facts of the case because the terms of the 1986 order prohibiting destruction of the evidence " 'until all state and federal petitions for writs of habeas corpus and other collateral proceedings' have terminated" had been complied with since "habeas and other collateral petitions are required to be timely filed. The order did not require that the evidence be kept indefinitely and per its terms the destruction of the evidence as long as ten years ago would have been appropriate because [Portee] had plenty of time to pursue and exhaust his post conviction remedies." On the merits, Judge Cunningham found that a Trombetta/Youngblood motion would fail as there was no indication that the DNA testing would yield favorable evidence; all that could be said of the destroyed evidence is that it could have been tested and those results may or may not have revealed anything useful. Judge Cunningham concluded that these "facts do not amount to any constitutional violation because the 'failure to preserve potentially useful evidence' is not Trombetta/Youngblood error. (People v. Roybal (1998) 19 Cal.4th 481, 508-510.)"

California v. Trombetta (1984) 467 U.S. 479 and Arizona v. Youngblood (1988) 488 U.S. 51.

Thereafter, this court's records indicate that on August 6, 2008, Portee filed a petition for writ of habeas corpus in this court challenging his conviction based on the state's failure to preserve evidence from the commitment offenses; Portee argued that he was entitled to sanctions under the Trombetta and Youngblood line of cases and contended that his case should be dismissed. This court summarily denied Portee's habeas petition and the California Supreme Court denied review on October 1, 2008.

Subsequently, on April 13, 2010, Portee, in pro per, filed a motion for a new trial based on newly discovered evidence. Portee claimed that the police had destroyed exculpatory evidence in violation of his due process rights and the superior court's order to preserve the evidence in this case. We must assume that since the evidence had been destroyed the newly discovered evidence to which Portee referred was the fact that the evidence had in fact been destroyed.

In 1986, the superior court, on Portee's motion, ordered that "the evidence in this matter be preserved pending further proceedings in this case, and that no evidence be destroyed until all state and federal petitions for writs of habeas corpus and other collateral proceedings, whether or not such proceedings have been currently initiated, have been completed or until such time as defendant has indicated in writing to the Court that no further petitions or other collateral proceedings will by sought by him."

Specifically, Portee argued that the San Jose police had "[u]nlawfully and maliciously destroyed potentially exonerating DNA evidence" in violation of the 1986 court order that mandated that all evidence be preserved. The destruction of this evidence, in violation of the court order deprived him of his "due process right to a fair trial, and access to DNA evidence for the purpose DNA testing." Portee contended, similar to his earlier habeas petition, that the destruction of the evidence violated California v. Trombetta, supra, 467 U.S. 479 and Arizona v. Youngblood, supra, 488 U.S. 51, in that a semen stain on a slip that was worn by Debbie M. would have conclusively proved that he was not her assailant.

The record shows that in 1981 a semen stain on a white slip worn by victim Debbie M. was tested by then criminalist James Norris at the Santa Clara County Crime Laboratory. Blood samples from Debbie M. and Portee were also tested. The results showed that Portee was an O secretor, Debbie M. an A secretor and that the semen on the slip had come from an O secretor.

Again, similar to his habeas petition, Portee claimed that because the police destroyed the slip in contravention of the court's 1986 order that they had acted in bad faith warranting sanctions. Portee urged the court to dismiss the charges (presumably only those involving Debbie M.) or in the alternative grant him a new trial.

On May 20, 2010, Judge Northway denied the motion stating, "For the reasons stated in the Superior Court order of January 31, 2008, by the Honorable Ray Cunningham, the Motion for New Trial received on April 13, 2010, presenting the same issue, (Trombetta/Youngblood) is DENIED."

Portee filed a notice of appeal from the denial of his new trial motion.

We appointed counsel to represent Portee in this court. Counsel filed an opening brief that stated the facts, but raised no specific issues. Counsel has requested that this court independently review the record on appeal. (See People v. Wende (1979) 25 Cal.3d 436.)

On September 23, 2010, we notified Portee of his right to submit written argument on his own behalf within 30 days. Thereafter, we received Portee's substantial supplemental brief, filed October 25, 2010.

In his letter brief, essentially, Portee reargues his case for a new trial and raises issues that were not part of his motion for a new trial below.

Preliminarily, we have determined that there was an issue of appealability that needs to be addressed. Since the issue of whether a matter is appealable goes to our jurisdiction (People v. Miller (2006) 145 Cal.App.4th 206, 212), we must address this issue even though it was not raised in the opening brief or in Portee's supplemental brief.

As this court has stated before, "[t]here is no constitutional right of appeal from a judgment or order in criminal cases; rather the right of appeal is statutory. [Citations.]" (People v. Connor (2004) 115 Cal.App.4th 669, 677.) To put it another way, " '[i]t is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.' [Citations.]" (People v. Mazurette (2001) 24 Cal.4th 789, 792.) Specifically, Penal Code section 1237 authorizes an appeal from a "final judgment" or "any order made after judgment, affecting the substantial rights of the party." (Pen. Code, § 1237, subds. (a) & (b).)

Here, Portee is appealing the order denying his motion for a new trial. However, this court may review an order denying a new trial motion only on appeal from a final judgment. (Pen. Code, § 1230, subd. (a).) "Such an order is not independently appealable [citations]; instead, the grounds for the unsuccessful motion are assessed on appeal from the underlying final judgment against the complaining party [Citation]." (People v. Ault (2004) 33 Cal.4th 1250, 1261.) The final judgment in Portee's case was rendered in 1982 and as noted he appealed his conviction thereafter.

Nevertheless, Portee argues that the denial of his new trial motion affected his substantial rights. Thus, he contends the order at issue here is appealable pursuant to Penal Code section 1237, subdivision (b).

Accordingly, because the order here is not a final judgment but an order made after final judgment, the viability of Portee's appeal depends on whether the order does affect his substantial rights.

If interpreted broadly, the phrase -order made after judgment, affecting the substantial rights of the party- "would apply to any postjudgment attack upon the conviction or sentence. Postjudgment trial level attacks seeking to nullify convictions and/or sentences come in many forms. They may be called, for example, motions to vacate, motions to correct, or motions to set aside judgments, petitions for writ of habeas corpus, or petitions for writ of error coram nobis. The court's denial of relief in any such situation could affect the defendant's substantial rights. However, decisional authority has limited the scope of the phrase, defining appealability more narrowly." (People v. Gallardo (2000) 77 Cal.App.4th 971, 980.)

Although a motion for a new trial based on newly discovered evidence may be made by a defendant, it must be made and determined before judgment. (Pen. Code, §§ 1181, subd. 8, & 1182.) As noted, judgment in this case was rendered on July 20, 1982. Accordingly, Portee's motion for a new trial should have been dismissed as untimely. Portee had no right to request such an order in the first instance. Accordingly, his "substantial rights" cannot be affected "by an order denying that which he had no right to request" in the first place. (People v. Pritchett (1993) 20 Cal.App.4th 190, 194.)

We note that Portee had in fact raised the issue of the destruction of the evidence in this case in a habeas petition to this court, which as noted was summarily denied and review was denied by the Supreme Court. We point out that although his petition was summarily denied, it was reviewed on the merits.

Furthermore, here, appellate counsel has filed what is known as a Wende brief. Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende, supra, 25 Cal.3d 436 (Wende) "require an appellate court to independently review the record in a criminal defendant's first appeal as a matter of right if appointed appellate counsel represents he or she has found no arguable issues." (People v. Dobson (2008) 161 Cal.App.4th 1422, 1425, italics added.) "The purpose of the Anders/Wende procedure is to ensure that attorneys who are appointed to represent indigent defendants in the defendant's first appeal conscientiously scrutinize the record and actively assert those issues which may, in the attorney's professional judgment, result in a reversal of the judgment or in a reduction of the defendant's sentence. [Citations.] These procedures apply, as a matter of due process and equality of representation, only to a defendant's first appeal as of right. [Citations.]" (People v. Thurman (2007) 157 Cal.App.4th 36, 45, italics added.)

A first appeal as of right is literally a defendant's first appeal of his criminal conviction. (Anders, supra, 386 U.S. at p. 744.)

The California Supreme Court has held that due process does not mandate extending Anders/Wende review beyond the first appeal of right in a criminal prosecution unless, among other considerations, their absence would significantly increase the risk of erroneous appellate resolution. (In re Sade C. (1996) 13 Cal.4th 952, 987-991.)

It is axiomatic that there could never be an erroneous appellate resolution of an appeal from an order that Portee had no right to request in the first place.

Since Portee has appealed from a non-appealable order, his substantial rights have not been affected and he is not entitled to Wende review, we are required to dismiss this appeal.

Before determining that this appeal should be dismissed, we informed counsel that we were considering such action. Further, we are aware that in People v. Kelly (2006) 40 Cal.4th 106 (Kelly), the California Supreme Court considered the obligations of an appellate court in a criminal case when appointed counsel files a Wende brief, the defendant then personally files a letter or supplemental brief, but the court determines nonetheless there are no arguable issues. The California Supreme Court determined that an appellate court must address the defendant's contentions in a written opinion. (Id. at pp. 109-110.) Here, however, as distinct from the situation in Kelly, Portee is not entitled to Wende review.

In any event, previously, we have considered whether Portee was entitled to a new trial or vacation of his conviction because of purported newly discovered evidence (the fact that evidence in the case had been destroyed) and have determined that he was not. Our view has not changed. It is true that the state has the duty, even without the kind of court order Portee has from 1986, to preserve evidence that might be expected to play a significant role in the defense. (California v. Trombetta, supra, 467 U.S. at p. 488.) Such evidence "must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Id. at p. 489.) However, the United States Supreme Court has explicitly refused to "impos[e] on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." (Arizona v. Youngblood, supra, 488 U.S. at p. 58.) "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." (Ibid.) In this case, the victim's slip is, as described in Youngblood, "evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." (Youngblood, supra, 488 U.S. at p. 57.) The failure to preserve only potentially useful evidence is not Trombetta/Youngblood error. (People v. Roybal, supra, 19 Cal.4th at p. 510.) Portee mentions no evidence and provides no documents suggesting that the San Jose police acted in bad faith when it destroyed the victim's slip. Moreover, the 1986 court order required that evidence be preserved "until all state and federal petitions for writs of habeas corpus and other collateral proceedings" had been completed; it did not require police to preserve the evidence indefinitely; even post-conviction proceedings must be timely filed, and it has been over 25 years since Portee was convicted.

Disposition

The appeal is dismissed.

WE CONCUR: MIHARA, J., GROVER, J.

Judge of the Superior Court of Monterey County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

People v. Portee

California Court of Appeals, Sixth District
Feb 2, 2011
No. H035789 (Cal. Ct. App. Feb. 2, 2011)
Case details for

People v. Portee

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID BERNARD PORTEE, Defendant…

Court:California Court of Appeals, Sixth District

Date published: Feb 2, 2011

Citations

No. H035789 (Cal. Ct. App. Feb. 2, 2011)