Opinion
B226006
08-26-2011
THE PEOPLE, Plaintiff and Respondent, v. GILBERT RODRIGUEZ, Defendant and Appellant.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA337376)
APPEAL from a judgment of the Superior Court of Los Angeles County. Monica Bachner, Judge. Modified and affirmed with directions.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Gilbert Rodriguez appeals from the judgment entered following a jury trial in which he was convicted of shooting at an occupied vehicle; two counts of resisting an executive officer; being a felon in possession of a gun; and four counts of attempted murder, with findings that they were willful, deliberate, and premeditated and that defendant personally fired a gun and inflicted great bodily injury in their commission. The jury also found that the crimes were committed for the benefit of a gang. Defendant raises numerous contentions. We strike a prior prison term enhancement, but otherwise affirm.
BACKGROUND
About 3:50 p.m. on March 2, 2008 (undesignated date references are to 2008), Lorena Jimenez, her baby Kimberly, and her husband Victor Gonzalez were in their Chevy Tahoe picking up Victor's brother Carlos Gonzalez on Aylesworth Place in the Lincoln Heights area of Los Angeles. The Tahoe had a Dodgers "LA" decal on the rear window. Victor asked Carlos who the person behind them was. Carlos stepped partway out of the driver's side of the Tahoe and turned to look behind the Tahoe. A dark gray Ford Edge stopped directly behind the Tahoe. Carlos and Jimenez identified the vehicle as the same one depicted in photographs of an Edge rented by defendant's girlfriend Veronica Castillo in late February. The driver of the Edge, whom Jimenez and Carlos identified at trial as defendant, got out and stood behind the open door of the Edge. Defendant repeatedly asked Carlos where he was from. Carlos, who had a shaved head and was wearing baggy pants, said he wasn't from anywhere, he was from Mexico. He also told defendant to calm down because there was a baby girl in the car. Defendant became very angry and swore at Carlos. A second man got out of the passenger side of the Edge. Carlos remembered that defendant was wearing a white muscle shirt, while Jimenez testified that defendant was shirtless. Jimenez also saw a third man start to get out of the passenger side. Defendant and the first passenger to exit began shooting at the Tahoe. Jimenez testified that the second passenger was also shooting. Carlos grabbed the baby from her car seat and shielded her. Jose Gonzalez emerged from the house he shared with Carlos but retreated when one of the passengers from the Edge pointed a gun at him. Victor drove away while the men were still shooting and went to a hospital. Jimenez had been shot in the arm.
Responding police officers recovered six nine-millimeter casings, twelve .40-caliber casings, and a white tank top that was near the casings. They examined the Tahoe at the hospital and observed bullet holes in the rear window, the rear and front passenger seats, and the baby's car seat.
Carlos described the driver (defendant) as about 30 to 35 years old, with a bald head, thick moustache, a partially shaded "L" tattoo on his chest, and another tattoo on his neck. Carlos told the police that defendant removed his white tank top and threw it on the pavement before he started shooting. Jimenez described the driver (defendant) as 30 to 35 years old, bald, with a tattoo on the right side of his neck, another on his upper chest, and a moustache.
On March 2 and 3, Los Angeles Police Department (LAPD) Detective Gabriel Barboza showed Jimenez, Victor, Carlos, and Jose a book of photographs of Eastlake gang members and Jimenez, Victor, and Jose a book of photographs of Lincoln Heights gang members. The same photo of defendant that Barboza later used in a photographic array (or six-pack) was on the last page of the Lincoln Heights gang book, but none of the witnesses identified anyone in the Lincoln Heights book. Carlos and either Jose or Victor (counsel variously used both names in questioning Barboza) selected a photograph of Orencio Madrigal in the Eastlake gang book as one of the gunmen. Carlos said Madrigal's moustache and facial features were similar to those of the driver. The next day, Barboza showed Carlos a larger photo of Madrigal, and Carlos said he was certain that Madrigal was not the driver.
Thereafter, Barboza showed Jimenez and Carlos a total of six photographic six-packs. On March 4, Jimenez and Carlos both selected codefendant Enrique Sanchez's photograph from a six-pack. They both said that Sanchez looked "very much" or "a lot" like the driver-gunman. On the night of March 9, Barboza showed Jimenez and Carlos a six-pack containing a photograph of defendant, and both selected defendant's photograph as the driver-gunman. Jimenez felt ill upon seeing the photograph but stated that she was "very sure" that defendant was the gunman who yelled at Carlos. Carlos became very nervous when he saw the photograph of defendant but stated that he "swore on [his] mother" that defendant was the driver-gunman. Carlos told Barboza that he believed that Sanchez was also involved in the shooting. Jimenez told Barboza that she was certain that Sanchez was the second gunman. Neither Jimenez nor Carlos identified anyone from any of the other six-packs.
Jimenez identified Sanchez in a live lineup but explained at trial that she was instructed to select anyone that she had previously identified in a six-pack. At trial, Jimenez initially identified codefendant Sanchez as the driver of the Edge, but immediately retracted that identification and said defendant was the driver. Thereafter, neither Jimenez nor Carlos identified Sanchez at trial.
Two days before the lineup, a young man went into Jimenez's workplace and said his cousin was in jail in connection with the shooting. He showed her a photo of his cousin. He said his family members belonged to two gangs and they would kill each other. He said she should be careful and asked her to talk to his aunt and to go to court and say that his cousin was not involved. The man also said he knew where Jimenez lived and called her daughter by name. The visit frightened Jimenez. The man returned to Jimenez's workplace after the lineup and said someone was waiting for her outside, which increased Jimenez's fear level. Jimenez was frightened to testify. (Although no one introduced any evidence regarding the identity of the young man, the prosecutor repeatedly referred to him as Sanchez's cousin, without objection, while examining Jimenez and Barboza and during argument.)
Sometime after Carlos made his identifications, an unknown male telephoned him four times. In the first call, the man stated Carlos's name and said that Carlos "wasn't going to be worth a shit." In the next three calls, Carlos hung up on the man as soon as he heard his voice. Carlos construed the calls as threats pertaining to his trial testimony. He informed Barboza immediately, but Barboza did not think the calls were related to the case and told him not to worry. Carlos was frightened to testify.
An Eastlake gang member approached Carlos as he walked down the street and told him that the shooters were Lincoln Heights gang members known as Little Villain and Slow. Barboza showed Carlos and Jimenez a six-pack containing a photograph of Lincoln Heights gang member Sergio Baretto, whose moniker was "Slow," but neither Carlos nor Jimenez identified anyone from that six-pack. Sanchez told Barboza his moniker was "Villen" and admitted at trial that it was "Little Villen." Gang graffiti inside the home included "Slow," "Villen," and "Cisco," which was one of David Banuelos's monikers.
On March 7 about 11:05 a.m., Officers Michael Fung and Werner Flores saw the gray Ford Edge that had been rented by Castillo. The officers' marked patrol car entered the driveway of a liquor store at Mission Road and Barbee Street next to Lincoln Park, and the Edge exited the same driveway. The Edge matched the description of a vehicle used in a shooting a week or two earlier, and Fung saw that the driver and passenger both had shaved heads and the driver had numerous tattoos, including an "LH" tattoo on one side of his neck. The occupants of the Edge and the officers looked at each other as they crossed paths. The Edge sped off and ran several stop signs. The officers pursued the Edge for about two miles as it exceeded the speed limit, drove on the wrong side of the road, and ran many stop signs and stoplights. The Edge slowed on Montecito Drive near a steep grassy slope, and its driver and passenger fled down the slope on foot as the Edge crashed into a parked car. Fung and Flores identified defendant as the driver of the Edge. Defendant had removed his shirt before abandoning the vehicle and was carrying it as he ran. The passenger, David Banuelos, was captured and arrested, but defendant evaded capture. Fung searched the Edge and found defendant's identification, driver's permit, and resume, vehicle rental documents, and a sock containing four live Fiocchi brand .40-caliber rounds and one live nine-millimeter Luger round.
Police found two mobile phones on Banuelos. Castillo testified that one of the phones belonged to her, but she allowed defendant and her siblings to use it. Castillo denied that any of her family members were involved with the Lincoln Heights gang. When Castillo's phone was turned on, it displayed a photograph of Castillo with the caption "Capone's Bitch." Capone was defendant's gang moniker. Castillo denied putting the caption on that photo. The contacts section of the phone included entries for "LHTS Cisco" and other names prefaced by "LHTS." The phone number for "LHTS Cisco" was the number of the other phone recovered from Banuelos. Castillo denied entering those contacts on her phone. Barboza also found a text message on the phone that had been sent by "Cisco" on the morning of March 2. The number of Castillo's phone was found in the contacts list of the other phone recovered from Banuelos with the label "CAPS."
After Banuelos's arrest, Barboza showed Jimenez and Carlos two six-packs, each containing a different photo of Banuelos, but neither victim identified anyone in either six-pack.
Defendant was arrested in his family's home in Lincoln Heights on March 9 after police in a marked patrol car pursued a white Ford Explorer that matched the description of the vehicle involved in an incident involving a gun. After the Explorer ran several red lights, the driver pulled up near a park, put the Explorer in reverse toward the pursuing police car, and leaped out of the moving vehicle holding a nine-millimeter gun in his hand. (Another officer circling the scene in a police helicopter did not see the gun in defendant's hand.) Officer Sal Flores identified defendant as the man who leaped from the Explorer. Defendant ran up a driveway and through the front door of his mother's home. Flores and his partner, Jason Smith, pursued defendant on foot. Defendant ignored the officers' orders to stop and drop the gun. The officers saw defendant run into a bathroom, open the window, look back at them, curse, then throw the gun through the bathroom window with an upward toss. Defendant resisted the officers' efforts to arrest him and made statements such as, "'Fuck you, pigs. You guys don't know who you messing with. This is Lincoln Heights, Lincoln Heights hood.'" Defendant also threatened to kill the officers. They eventually managed to grab and tackle defendant as he attempted to run out of the bathroom. Defendant resisted them, and they struck him repeatedly.
Officer Smith recovered defendant's gun from the yard of the neighboring home. It was loaded with four nine-millimeter Luger rounds, each of which was stamped "FC." A firearms examiner testified that that gun had ejected all six nine-millimeter Luger casings recovered at the crime scene. The nine-millimeter casings from the crime scene were all manufactured by the Federal Cartridge Corporation and stamped "FC." He further testified that all twelve .40-caliber casings recovered at the crime scene were Fiocchi brand ammunition and had been ejected by the same gun, but that gun was not recovered.
The parties stipulated that defendant's palm print was found on the outside of the rear window on the driver's side of the Ford Edge, Banuelos's fingerprint was found on a small mirror found in the slot of the front passenger door of the Edge, and none of the other 15 prints lifted from the Edge matched Sanchez. No latent fingerprints were found on the gun or ammunition, but a non-identifiable print was found on the magazine. The gun's grip was a textured material that was not conducive to retaining prints.
LAPD criminalist Meghan Cirivello testified that one of her colleagues examined the tank top recovered at the crime scene, collected four hairs from the inside of it and swabbed the shirt's armpits, but concluded there was too little DNA present in the hairs or swabs to develop a profile. No DNA was developed from the recovered gun, magazine, or ammunition.
Castillo testified that the Ford Edge she had rented was stolen about 10:30 or 10:45 a.m. on March 7 while she was at a laundry on Mission Road and Selig Place in Lincoln Heights. The thief had a military-style haircut. Castillo phoned the police at 11:00 a.m. to report the theft. The officer told her she would have to come in and report it, which she did about 7:30 p.m. Castillo's purse and mobile phone and defendant's identification, driver's permit, and car insurance information were in the Edge when it was stolen.
About 11:00 a.m. on March 7, Officer Ricardo Verduzco was working the front desk at LAPD's Hollenbeck station. A woman called to report that the small gray Ford SUV she was renting had been stolen. The woman did not know the license plate number. Verduzco told her she should come to the station to make a report as soon as possible. The woman said, "Okay," and hung up.
On cross-examination after Castillo was recalled as a defense witness, she testified that the police officer who answered her phone call said the police could not respond because they were in pursuit, and if she wanted to make a claim, she needed to go to the police station. She then phoned defendant, who told her that the police had just phoned him and said that they were pursuing Castillo's rental vehicle and wanted Castillo to phone Officer Flores because they needed more information. Castillo phoned Flores, who asked if she knew the license plate of the vehicle he was pursuing. She said she did not, and he asked her to go to the police station to make a report. Castillo did not see the police at the nearby liquor store, see them chasing any vehicle on Mission Road, or hear any nearby sirens.
Officer Michael Yoro, the prosecution's gang expert, testified about the structure, size, symbols, hand signs, graffiti, primary activities, and territory of the Lincoln Heights gang. Lincoln Heights uses the letters "LH," "LHTS," and "LA." They also use the Dodgers "LA" logo. Yoro opined that both defendant and Sanchez were members of the Lincoln Heights gang on March 2. Yoro also testified about the Eastlake gang, which was a rival of the Lincoln Heights gang. The site of the charged shootings was within territory claimed by the Eastlake gang. Eastlake gang members use the Lakers' logo and apparel and would not put a Dodgers logo on their vehicle. Eastlake gang members' tattoos tend to be "ELS" or "Lake." In response to a hypothetical question, Yoro opined that the shootings were committed for the benefit of and in association with the Lincoln Heights gang.
Castillo testified that defendant worked every day except Mondays. On Sunday, March 2, she dropped him off at work at G&A Auto in the morning and picked him up a little after 4:00 p.m. She also dropped him off for work on the morning of March 7, but he had to walk home in the afternoon due to the theft of the Edge.
Javier Crespo and his son Andrew testified that defendant worked at Javier's auto mechanic business, which was located at the Crespo family's place of business, G&A Automotive in Montebello. Javier paid defendant in cash and did not keep business records. He believed he hired defendant around January of 2008. Defendant worked Tuesdays through Sundays. Javier thought defendant was at work on March 2 until sometime between 4:00 and 5:00 p.m. because defendant never missed a day of work until he was arrested. Andrew recalled that he and defendant worked there together all day on March 2 and March 9, until about 4:30 p.m. Defendant worked for Javier in Javier's separate business, not for the family business, so Javier's brothers and father would not know anything about him. In rebuttal, Carlos Crespo, his father (Carlos, Sr.), and his brother Ricardo testified that they, not Javier, owned the business. They worked all day, six days a week, taking turns as to who worked on Sundays. They had never before seen defendant but did not know whether defendant worked for Javier. Javier had his own separate business as a mechanic, his own customers, and may have had his own employees. Javier did his work outside the building, whereas the main work of the shop—rebuilding parts—was performed inside the building.
Castillo testified that on March 9, just prior to defendant's arrest, he and she were unloading laundry at defendant's mother's house. Mario Chaires drove up in a white truck belonging to defendant's sister Michelle. Defendant walked up to the truck. Then the police arrived, the truck drove away, and defendant walked quickly into the house. Defendant had a cigarette and a soda can in his hands, but no gun. The police ran up, shoved Castillo aside, and entered the house. Castillo heard defendant yell, "Stop hitting me" and "I'm not resisting." She did not hear him make any threats.
Chaires testified that a police car was behind him as he drove up to defendant's mother's house on the afternoon of March 9, but it did not have its red lights on. When Chaires stopped in front of the house, defendant walked toward Michelle's truck. Defendant did not have a gun in his hand. The police car turned its red lights on. Chaires parked around the corner. He was detained as he walked back toward the house.
Defense investigator Bruce Fallon testified that in October of 2009 he visited the site of defendant's arrest. Fallon opined that in order to throw the gun over the nine-foot wall into the neighbor's yard, a person would have to put his arm through the bathroom window and toss the gun upward. But the bottom of the bathroom window was at six feet, six inches above the ground—just two and one-half feet below the top of the wall. If someone had thrown the gun over the wall, Fallon would expect the gun to have fingerprints and dirt on it.
Sanchez called Dr. Robert Shomer as an expert witness regarding eyewitness identifications. He testified, in essence, that factors such as the brevity of a witness's exposure to an assailant, the assailant's use of a gun, stress, subsequent viewing of photographs of suspects, suggestive words or conduct by the police, and the passage of time decrease the accuracy and reliability of a witness's identification of a suspect. Shomer opined that showing a victim a six-pack containing a photograph of a person that the victim had already viewed in a book of photographs was unduly suggestive. He further opined that the six-pack containing defendant's photo was itself unduly suggestive because the other five photos were too dissimilar, and that asking witnesses to view a six-pack late at night weakened the admonition and thus made any identification unreliable.
Sanchez presented an alibi defense consisting of his own testimony and that of various witnesses that at the time of the charged shootings he was with his ex-girlfriend at Avenue 28 and Montecito Street—about six or seven blocks from the crime scene— participating in a rehearsal for his cousin's quinceanera.
In bifurcated proceedings, the jury acquitted Sanchez on all counts, but convicted defendant of four counts of attempted murder, with findings that the attempts were willful, deliberate, and premeditated and that a principal fired a gun and inflicted great bodily injury in the commission of the crimes (Pen. Code, § 12022.53, subds. (d)-(e); undesignated statutory references are to the Penal Code); shooting at an occupied vehicle; two counts of resisting an executive officer; and being a felon in possession of a gun. The jury also found that all of the crimes except resisting an executive officer were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members for the benefit of a gang. The trial court found true allegations under section 667, subdivision (a)(1); section 667.5, subdivision (b); and the "Three Strikes" law, all based upon the same prior serious felony conviction. The court sentenced defendant to a second strike prison term of 228 years 8 months to life, consisting of second strike terms of 30 years to life, plus firearm enhancements of 25 years to life on each of the four attempted murder counts, 16 months on each resisting an executive officer count, a 5-year section 667, subdivision (a)(1) enhancement; and a 1-year section 667.5, subdivision (b) enhancement.
DISCUSSION
1. Denial of Wheeler-Batson motion
Defendant contends the trial court erred by denying his motion based upon People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)and Batson v. Kentucky (1986) 476 U.S. 79 (Batson) challenging the prosecutor's exercise of peremptory challenges against two African-American prospective jurors.
The first juror in controversy, Prospective Juror No. 51, owned a beauty salon and worked for the City of Los Angeles as a "community worker" on child abuse and sexual assault cases. Asked if she was a social worker, she responded, "It's like a social worker, but I'm a community worker." She had "lots of interaction with law enforcement," including the LAPD, and spoke to "the children" and "the adults." Her cousin was a deputy sheriff. She had previously worked at the Internal Revenue Service as a manager of a group that "did teleprocessing where I'm the last person to look at [a] tax return to see whether or not the auditor or the agent, revenue agent, if they made any mistakes." She had served on a civil jury that reached a verdict and on a jury in a murder trial that reached a verdict. The prosecutor asked her whether she had any negative feelings about having to criticize or break bad news to people she managed. She said she did, but her feelings did not cause her to alter her decision. She did what she had to because it was her job. The prosecutor then asked if her negative feelings caused her to hesitate before taking action. She replied, "I'm not quite understanding what you are getting at. I did what I had to, and I have feelings because I'm dealing with a human being, and, therefore, if I had that power in my hand to let a person go or to write a person up with the negative aspect, that is going to stay in their folder for a while. But, nevertheless, I had a job to do, and that is what I did."
The other juror in issue was Prospective Juror No. 60. He worked as a computer analyst for L.A. Care Health Plan and had no prior jury experience. He was originally from Nigeria but had been in the United States for 36 years and knew "quite a bit" about the jury system. When asked by the prosecutor how he felt about "the weightiness of being a juror," he said he would "try to weigh, you know, the situation according to the evidence and make a judgment, you know, as I see it." The prosecutor then asked him if he was "a softy." The prospective juror responded, "In a way, but I try to at least be as honest as I can be." Prospective Juror No. 60 also apparently responded affirmatively when the prosecutor asked if anyone had "had a particularly poor experience with police officers, something beyond getting pulled over and having your day kind of ruined . . . ." The prosecutor asked the prospective juror how he felt after his negative experience. Prospective Juror No. 60 replied, "I just believe it was an honest mistake," and said he would not hold it against police officers who testified at the trial.
After Prospective Juror No. 60 was seated, the prosecutor exercised a peremptory challenge against another juror, then used his next peremptory to excuse No. 60. Two peremptory challenges later, he excused Prospective Juror No. 51.
Defense counsel immediately made a Wheeler-Batson motion regarding Prospective Jurors Nos. 51 and 60, asserting that the prosecutor was excusing African-Americans. The court asked the prosecutor to explain his reasons for excusing the two prospective jurors. The prosecutor replied, "For the juror from Nigeria, he indicated he was a softy. And for the person who I just kicked, she said that in her job as a manager that she did not like the feeling she had when she had to go deliver bad news to people. And that is a question I have been asking all the jurors. And I have been kicking all the ones that responded in that manner." He then added, "I don't want soft jurors."
The court had the reporter reread at least a portion of the voir dire of Prospective Jurors Nos. 51 and 60, then recessed for the day.
The next morning, the prosecutor noted that there were two African-American jurors seated that he did not intend to excuse, the next prospective juror to be seated in lieu of Prospective Juror No. 51 was African-American, and two of the additional prospective jurors in the audience were African-American. The prosecutor noted that he had exercised three peremptory challenges against "Hispanics" and four against "Whites," but only two against "African-Americans."
The prosecutor further explained, "[J]uror number 51 indicated that she has had negative feelings about affecting subordinates. [¶] . . . [¶] . . . Which is in the line of questioning I have been using to determine people's attitude towards sitting in judgment. I'm sure the court and counsel and the jurors have become aware of it. Very few other jurors, relatively, have expressed this opinion. And I've kicked every single one that has done so. [¶] Secondly, when I asked her about those feelings, I got the impression that she appeared to be annoyed by me prying into her answer. . . . She also said . . . that she is a community worker, which tends to be a liberal profession. [¶] . . . [¶] Also, . . . she worked for the IRS, which is a conservative profession, arguably, but if the court considers what her job was at the IRS, which was to actually prevent auditors from going on and auditing people, essentially vetoing their request to go audit, it's actually—she's the last line of defense against an audit for the people that are working there. She was the one to say, hey, she would kick back audits to people who want to go out and enforce them. So she's the opposite, in a way, of an IRS agent."
The prosecutor continued, "As far as Juror Number 60 is concerned, I had a hunch, which is permissible . . . , that he looked soft. Not exactly sure why I felt that way, soft meaning sitting in judgment of another person. That was the context of the question in which I asked that. And that's why I asked him, are you a softy? Because I had that hunch. [¶] And I imagine it was probably his demeanor and he was somewhat soft-spoken, and I was right when I asked him. He said, 'in a way.' He agreed with me that he was a softy. . . . And I had forgotten this, but he had also said that he had had an unpleasant experience with police officers, but that he would—he would not hold it against my officers, but he had, nonetheless, said that he had such an experience. [¶] He was the only juror in this entire venire, in fact, that revealed so, although I admit I only started asking that question somewhat later in my questioning, simply because I forgot to. And now that I'm—have asked it, he's the only one that so far revealed any unpleasant experiences, something beyond a parking ticket."
After hearing argument from defense counsel, the court denied the motion. The court concluded that the prosecutor's stated reasons were genuine, not a pretext for purposeful group discrimination, and were based upon responses to relevant questions he had asked of all prospective jurors. The court noted that Prospective Juror No. 60 "was very soft-spoken." The court further noted that defendant and Sanchez were not African-American, two African-Americans were seated, and the next prospective juror to be seated upon the exercise of the challenge against No. 51 was African-American.
A party violates both the California and the United States Constitutions by using peremptory challenges to remove prospective jurors solely on the basis of group bias, that is, bias presumed from membership in an identifiable racial, religious, ethnic, or similar group. (Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Lancaster (2007) 41 Cal.4th 50, 74; Batson, supra, 476 U.S. at pp. 85, 96-98.) A party who believes his opponent is doing so must timely object and make a prima facie showing of exclusion on the basis of group bias. (Wheeler, at p. 280.) One need not be a member of the group to challenge the exclusion. (Id. at p. 281.)
We infer that the trial court made a prima facie finding of group bias where, as here, the court solicits an explanation of the challenged excusal without explaining its views on the sufficiency of the prima facie showing. (People v. Arias (1996) 13 Cal.4th 92, 135.) The burden shifts to the other party to show that the peremptory challenge was not based solely upon group bias, but upon a "specific bias," that is, one related to the case, parties, or witnesses. (Wheeler, supra, 22 Cal.3d at pp. 276, 281-282.) This showing need not rise to the level of a challenge for cause. (Id. at pp. 281-282.) Although a party may exercise a peremptory challenge for any permissible reason or no reason at all, implausible or fantastic justifications are likely to be found to be pretexts for purposeful discrimination. (People v. Huggins (2006) 38 Cal.4th 175, 227; Purkett v. Elem (1995) 514 U.S. 765, 768 (Purkett).)
The trial court must then make a sincere and reasoned attempt to evaluate the explanation for each challenged juror in light of the circumstances of the case, trial techniques, examination of prospective jurors, and exercise of peremptory challenges. (People v. Fuentes (1991) 54 Cal.3d 707, 718.) It must determine whether a valid reason existed and actually prompted the exercise of each questioned peremptory challenge. (Id. at p. 720.) The proper focus is on the subjective genuineness of the nondiscriminatory reasons stated by the prosecutor, not on the objective reasonableness of those reasons. (People v. Reynoso (2003) 31 Cal.4th 903, 924.) "[N]either Wheeler nor Batson overturned the traditional rule that peremptory challenges are available against individual jurors whom counsel suspects even for trivial reasons." (People v. Montiel (1993) 5 Cal.4th 877, 910, fn. 9.) "[A] 'legitimate reason' is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.]" (Purkett, supra, 514 U.S. at p. 769.) "To rebut a race- or group-bias challenge, counsel need only give a nondiscriminatory reason which, under all the circumstances, including logical relevance to the case, appears genuine and thus supports the conclusion that race or group prejudice alone was not the basis for excusing the juror." (Montiel, at p. 910, fn. 9.) "[T]he issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy." (Miller-El v. Cockrell (2003) 537 U.S. 322, 339 .) "In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her." (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).)
Because Wheeler motions call upon trial judges' personal observations, we view their rulings with considerable deference, provided that the trial court makes a sincere, reasoned effort to evaluate the justifications offered. (Lenix, supra, 44 Cal.4th at pp. 613-614.) "On appeal, a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous." (Snyder v. Louisiana (2008) 552 U.S. 472, 477 .)
Here, the prosecutor provided race-neutral reasons for excusing Prospective Jurors Nos. 51 and 60 that were based upon their demeanor, professions, and responses to questions relating to their potential biases and their ability to reach the guilty verdicts the prosecutor sought. Such matters have long been held to be proper race-neutral grounds. (Wheeler, supra, 22 Cal.3d at p. 276 ["'bare looks and gestures'" cited as an example of a permissible specific bias]; People v. Granillo (1987) 197 Cal.App.3d 110, 117 [body language showing animosity to prosecutor]; People v. Watson (2008) 43 Cal.4th 652, 677 [employment as social worker]; People v. Garceau (1993) 6 Cal.4th 140, 172 [reluctance to judge others], overruled on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117; People v. Turner (1994) 8 Cal.4th 137, 171 [negative experience with law enforcement], overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) What matters here is not whether the prosecutor articulated highly persuasive grounds for excusing Prospective Jurors Nos. 51 and 60 or whether a plausible defense argument can be made against the grounds articulated, but that the grounds were race-neutral and the trial court concluded that the prosecutor's explanation was genuine. In assessing the subjective genuineness of the prosecutor's explanation, the trial court had the benefit of its contemporaneous observations of both voir dire and the prosecutor's demeanor as he explained his reasons for excusing the prospective jurors. The trial court's remarks indicate it was sensitive to the possibility of group bias and faithfully performed its duties in accordance with the Batson and Wheeler lines of authority. Its ruling was not clearly erroneous.
2. Discovery violations
Defendant contends that delays by the prosecutor in providing discovery of four items violated his rights to due process and the effective assistance of counsel. He argues the delayed disclosure violated Brady v. Maryland (1963) 373 U.S. 83, 87 , which requires the prosecutor to disclose to the defense all material exculpatory evidence—including impeachment evidence regarding prosecution witnesses—known to the prosecution team. (United States v. Bagley (1985) 473 U.S. 667, 676 ; In re Brown (1998) 17 Cal.4th 873, 879.)
The defendant must establish that the undisclosed information was both favorable to the defense and material, meaning that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the trial would have been different. (Kyles v. Whitley (1995) 514 U.S. 419, 433-434 .) Such a reasonable probability exists where the undisclosed evidence "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." (Id. at p. 435.) "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." (United States v. Agurs (1976) 427 U.S. 97, 109-110 .)
No Brady violation occurs if the evidence is presented at trial, even if it was not previously disclosed during discovery. (People v. Verdugo (2010) 50 Cal.4th 263, 281 (Verdugo).)
a. Threats against Jimenez
The first delayed disclosure challenged by defendant is the police report about threats by Sanchez's cousin to Jimenez. Defendant did not challenge the delayed receipt of this report in the trial court on any ground. It was raised only in the course of argument regarding delayed disclosure of threats made to Carlos. At that time, the prosecutor stated, without contradiction or dispute, that he learned of the threats to Jimenez from discovery provided by Sanchez, obtained a report about the threats from Barboza, and provided the report to defense counsel before Jimenez testified. Jimenez began testifying on the first day of the evidentiary portion of the trial. She testified about the threats during direct examination on her second day of testimony. Her cross-examination began on her second day of testimony, then resumed one week later. Neither defendant requested a continuance based upon the delayed disclosure.
For several reasons, the delayed disclosure of the report did not constitute a Brady violation. First, the evidence was introduced at trial and thus not suppressed. We further note that the defense had the information before Jimenez testified about the threats, in ample time to prepare for cross-examination one week later. Second, defendant does not explain or even suggest how a report regarding threats against Jimenez by a member of the codefendant's family could possibly have been favorable to him. (Verdugo, supra, 50 Cal.4th at p. 283.) Although the threats suggested Sanchez's guilt, they had no tendency to exonerate defendant because there were two gunmen. Barboza's failure to produce the report on an earlier date was, at most, sloppy police work that does not appear to have prejudiced defendant. Because the prosecutor did not previously have the report and immediately provided it to the defense when he acquired it, the late disclosure was not a violation of section 1054.1, which only requires production of materials that are "in the possession of the prosecuting attorney or if a prosecuting attorney knows it to be in the possession of the investigating agencies." Although, as defendant argues, "pretrial access to reports of purported threats to the witnesses would have allowed the defense to investigate further and prepare for adequate cross-examination," the mere utility of earlier access does not mean that the prosecutor violated either his statutory or constitutional obligations.
b. Threats against Carlos
The second delayed disclosure concerned the phone calls Carlos received from an unknown man. Sanchez's attorney objected immediately when Carlos testified on direct about the calls. Counsel for each defendant informed the court that they did not have a report on such threats. The prosecutor said that he did not have a report either, but wondered if the change in Carlos's testimony was attributable to a threat similar to that against Jimenez. The court permitted all counsel to examine Carlos outside the presence of the jury regarding the phone calls. Carlos said he did not remember the timing of the calls, but he had reported it to Barboza the day he received the first call. Detective Barboza informed the court that he wrote neither a report nor notes about the calls. Defense counsel asked for an instruction on the alleged discovery violation. Counsel for Sanchez argued that the phone calls were Brady evidence because Barboza thought they were merely a prank. After extensive arguments over the course of two days, the court found that the prosecutor did not know of the information, he immediately disclosed it upon learning it, and the information was not exculpatory. The court declined to instruct upon a discovery violation, but was open to reconsidering that ruling. Neither defendant requested a continuance based upon the delayed disclosure.
As with the threats against Jimenez, no Brady violation occurred because the information was introduced at trial and defendant has not shown that the information was favorable to him. In addition, we note that the information emerged on the third day of testimony in a lengthy trial, defendant did not request a continuance, and he has not shown any prejudice from the late disclosure. Barboza's failure to inform the prosecutor of the threatening phone calls was at most sloppy police work that apparently caused no prejudice to defendant. The delay in disclosure did not even violate the prosecutor's statutory discovery obligation because the prosecutor did not know about the threats until Carlos testified about them. At that time, it appears all counsel and the court inquired of Barboza, who revealed the information. We further note that counsel for Sanchez thoroughly cross-examined Barboza about the phone calls before the jury, and Barboza repeatedly testified that he had not written a report or even made any notes about the calls because he did not think they were related to this case.
c. Fingerprint evidence
The third category of delayed disclosure pertains to a March 8, 2008 latent fingerprint examiner's report that 17 finger or palm prints were developed from the Ford Edge. The report was provided to the defense on November 3, 2009, the ninth day of testimony in the trial, more than two days before the prosecution concluded its case-in-chief. The report apparently indicated that one print matched Banuelos, but did not identify any matches for the other prints. Counsel argued that the absence of a match to their clients constituted exculpatory evidence and sought a dismissal for the failure to disclose the report. The prosecutor informed the court he had only received the report the night before, and as far as he knew, no one had compared defendant's or Sanchez's fingerprints to the latent prints, but he was attempting to have a comparison performed that day. The court denied the request for dismissal, but temporarily precluded the prosecutor from calling any witnesses regarding fingerprints until he informed the court of the results of the comparison. Barboza testified on cross-examination, in the presence of the jury, that he had only discovered the existence of the report the night before.
The next day, the prosecutor informed the court and defense counsel that none of the prints matched Sanchez, one possibly matched defendant, but the analyst was still working on the comparison for defendant and another analyst would have to review the possible match to defendant. On the following day, the parties stipulated to the fingerprint matches before the jury, including the presence of defendant's palm print on the outside of a driver's side window.
Because the information was disclosed during trial, no Brady violation occurred. Nor did the late disclosure violate the prosecutor's statutory discovery obligation, as he did not have the report until the night of November 2 and the comparison of the latent prints to defendant's and Sanchez's prints had not even been performed. The prosecutor promptly disclosed the information when he obtained it.
d. Eastlake gang book
The final purported discovery violation raised on appeal pertains to the Eastlake gang book. On cross-examination, Barboza testified he thought he had provided a photocopy of the Eastlake gang book to the prosecutor. Outside the presence of the jury, defense counsel demanded to see the book. The prosecutor informed the court and counsel that Barboza was mistaken, the prosecutor did not have the book, and the defense had never asked for the entire book, but only a copy of the page with Madrigal's photo, which already had been introduced as an exhibit. Barboza then testified that he had been mistaken; he had only provided the prosecutor with the page from the Eastlake gang book from which an identification had been made.
The failure to provide a copy of the entire gang book was not a Brady violation. Defendant has not suggested how photographs of purported members of the Eastlake gang that were not selected by the victims could possibly be favorable to him. Indeed, he concedes that it was not material because the nondisclosure "probably did not alter the course of the trial."
3. Confrontation Clause
Cirivello, the prosecution's DNA witness, did not personally process or test the evidence. Citing Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ (Melendez-Diaz)and Bullcoming v. New Mexico (2011) ___ U.S. ___ (Bullcoming), defendant contends that his Sixth Amendment right to confront witnesses against him was violated through presentation of a surrogate for the actual DNA analyst.
We need not determine whether People v. Geier (2007) 41 Cal.4th 555, which held that such testimony was permissible, remains sound law in the wake of Bullcoming and Melendez-Diaz because Cirivello's testimony had no tendency to establish defendant's guilt. No DNA was extracted from the hairs or any other evidence, and thus no DNA testing was performed. Defendant complains, in essence, that Cirivello was unable to provide exculpatory evidence because she did not know the precise location of the hairs on the shirt. This purported shortcoming in her testimony does not constitute a violation of his right to confront witnesses against him, but is instead a complaint that the prosecutor violated a nonexistent duty to call a witness the defense may have found helpful. If defendant believed the analyst's testimony would assist in his defense, he should have subpoenaed the analyst as a defense witness. In addition, defendant neither objected to Cirivello's testimony nor joined in Sanchez's confrontation clause objection, which was later withdrawn for tactical reasons. Defendant thus forfeited his claim. (People v. Williams (2008) 43 Cal.4th 584, 626.)
4. Testimony of gang expert
Defendant contends that certain questions and responses during gang expert Yoro's direct testimony usurped the role of the jury and violated his right to due process.
Where, as here, a gang enhancement is alleged, expert testimony regarding the "culture, habits, and psychology of gangs" is generally permissible because these subjects are "'sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.'" (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) The gang expert may testify to an opinion based upon facts shown by the evidence that are restated in a hypothetical question asking the expert to assume the truth of those facts. (People v. Gonzalez (2006) 38 Cal.4th 932, 946.) An expert may not testify to an opinion that the defendant had particular knowledge or a specific intent. (Ibid.; People v. Garcia (2007) 153 Cal.App.4th 1499, 1513.) But specificity and detail in a hypothetical question asked of an expert does not convert an otherwise proper answer into a prohibited opinion regarding a defendant's subjective mental state. (People v. Ward (2005) 36 Cal.4th 186, 209-210.) "[T]here is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read [People v. Killebrew (2002) 103 Cal.App.4th 644] as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons." (Gonzalez, supra, 38 Cal.4th at p. 946, fn. 3.)
The first matter challenged by defendant was the prosecutor's initial hypothetical question to Yoro that began, "Now, assuming that defendant Rodriguez and defendant Sanchez and another individual drive into Eastlake territory . . . ." At the conclusion of the question, Sanchez objected that it was inappropriate to use his name in a hypothetical. The court sustained the objection and asked the prosecutor to reword his question. Defendant does not explain how the trial court's ruling sustaining a defense objection rendered his trial fundamentally unfair. We presume the jury followed the trial court's repeated instructions to ignore questions to which the court sustained an objection. (People v. Williams (2010) 49 Cal.4th 405, 469.)
The next matters challenged on appeal appear to be the prosecutor's rephrased hypothetical, his four follow-up questions, and Yoro's responses to all of these questions. No one objected to these questions or responses at trial. Absent a timely and specific objection on the particular grounds now asserted on appeal, defendant forfeited these claims. (People v. Partida (2005) 37 Cal.4th 428, 434; People v. Williams (1997) 16 Cal.4th 153, 250.)
Even if he had preserved his claims, we would find no merit in them. The hypothetical question was proper under the precedents cited above. The prosecutor asked, "Assuming that two—three Lincoln Heights gang members drive into Eastlake territory on 3117 Aylesworth, and they pull up behind a Chevy Tahoe with tinted windows. And at some point, an individual comes and tries to get into the Tahoe who has a shaved head, baggy clothing. And prior to that individual being able to get into the vehicle or around that time, the suspects ask, 'Where you from?' After a brief conversation, two of the suspects or three of the suspects open fire, firing numerous bullets into the vehicle, and striking one of the passengers. [¶] Do you have an opinion as to whether that crime was committed for the benefit of a criminal street gang?" This was a proper hypothetical addressed to Yoro's expertise. It did not ask whether defendant had particular knowledge or a specific intent. Defendant's challenge to Yoro's responses to four ensuing questions (if, indeed, the responses and questions are in issue on appeal) appears to be based on the theory that the hypothetical was improper.
Defendant next challenges the following portion of Yoro's explanation for the basis of his opinion that the crimes were committed for the benefit of and in association with a criminal street gang: "Gang members—Lincoln Heights gang members were in known—in the heart of Eastlake territory. They were there on a mission. They were looking for rivals. They were looking for—" Sanchez objected and moved to strike this testimony on the ground it "call[ed] for subjective intent." The court sustained the objection and struck the testimony. Defendant does not explain how the trial court's ruling sustaining a defense objection and striking the testimony in issue rendered his trial fundamentally unfair. He instead argues that the jury heard this testimony and "surely took the expert at his word." We presume the jury followed the trial court's repeated instructions to disregard testimony that the court ordered stricken from the record.
Finally, defendant challenges Yoro's testimony in response to a question by the prosecutor about what facts formed the basis of Yoro's opinion that the crimes were committed for the benefit of a gang. Yoro responded, "The fact that these three individuals from the Lincoln Heights gang were together, putting in work in a rival Eastlake gang territory, confronting individuals who they thought were rivals. Totally disregarding their—their answer denying gang membership. And committing the shooting shows that the Lincoln Heights gang will not be—will not be deterred. They will do whatever is necessary to show their allegiance to the neighborhood and to the gang." No one objected to this testimony, resulting in forfeiture of defendant's claim on appeal. Even if defendant had preserved his claim, it would have no merit: "putting in work" and "confronting individuals who they thought were rivals" described conduct, not a subjective mental state or knowledge. Yoro had already testified, without objection, that the scene of the crime was within the territory of the rival Eastlake gang, and that by asking where the victims were from, the hypothetical Lincoln Heights gang members were confronting persons they thought might be rivals.
Defendant also seemingly argues that Yoro's expert testimony ceased to be admissible as expert testimony because earlier portions of his testimony had so thoroughly educated the jurors about gangs that he was "no longer testifying on any subject where he is more skilled than the jury." Because defendant raised no such objection in the trial court, we will not consider his novel, but forfeited claim.
5. Sufficiency of evidence
Defendant challenges the sufficiency of the evidence to show that he was the "driver's side shooter." We note that the side of the car is irrelevant, provided there was sufficient evidence to establish that defendant was one of the gunmen. We conclude ample evidence supports defendant's convictions.
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) We presume the existence of every fact supporting the judgment that the jury could reasonably deduce from the evidence and make all reasonable inferences that support the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Catlin (2001) 26 Cal.4th 81, 139.) Testimony believed by the trier of fact is rejected on appeal only if physically impossible or obviously false. (People v. Allen (1985) 165 Cal.App.3d 616, 623.)
We note that defendant misstates the law by arguing that "identifications must be supported by evidence that is reasonable, credible, and of solid value." Identification evidence is assessed in the same manner as other evidence under the substantial evidence standard. (People v. Cuevas (1995) 12 Cal.4th 252, 277.)
At trial and from six-packs, Jimenez and Carlos identified defendant as the driver of the Ford Edge who got out, challenged Carlos, then shot at them, Victor, and the baby. These identifications were not impossible or obviously false. The jury was informed that Jimenez and Carlos initially identified Sanchez as the driver's side gunman and that they had seen defendant's photograph in the Lincoln Heights gang book and passed over it before they selected him from a six-pack. It was within the province of the jury to sort out the identification testimony, and it apparently concluded that Sanchez, not defendant, was misidentified. Jimenez and Carlos also identified the Ford Edge that defendant's girlfriend Castillo had rented as the shooters' vehicle. This identification was strengthened by the later discovery in the Edge of ammunition of the same calibers and brands as the casings recovered at the crime scene. Although Castillo claimed that the Edge had been stolen five days after the shootings, between 10:30 and 10:45 a.m. on March 7, Officers Fung and Werner Flores saw defendant driving the Edge on March 7 at about 11:05 a.m., right before they found the ammunition. Officers Smith and Sal Flores saw defendant throw a gun through the bathroom window and over the fence, and ballistics analysis established that that gun was the one that ejected the nine-millimeter casings recovered at the crime scene. Collectively, this constituted substantial evidence that would permit a reasonable jury to conclude, beyond a reasonable doubt, that defendant was one of the men who shot at Carlos, Jimenez, Victor, and the baby.
All of defendant's contentions regarding the sufficiency of the evidence were raised in the trial court and fully presented to the jury for consideration. Defendant and Sanchez thoroughly cross-examined the witnesses to attempt to establish these theories, as well as gaps, inconsistencies, contradictions, implausibilities, and weaknesses in the prosecution's case with the goal of raising a reasonable doubt that defendant and Sanchez were involved in the shootings. The defense arguments vigorously exploited these purported flaws in prosecution's case. The jury, not this court, was the proper body to evaluate these contentions, which go to the weight, not the sufficiency, of the evidence. With respect to defendant, the jury rejected these claims. Because these claims do not reflect an insufficiency of evidence, we reject them also.
6. Amendment of information
Defendant contends that the trial court erred and violated his due process right to notice of the charges by allowing the prosecutor to amend the information on the last day of trial to add a strike allegation. In actuality, the prosecutor filed the amended information on the afternoon of November 9, 2009, which was the next-to-last day of testimony, but not the last day of trial. Defendant objected to the inclusion of the strike allegation, but not the section 667, subdivision (a)(1) enhancement, on the ground of insufficient notice. He argued that the strike "ratchets up the entire case" and that he had been deprived of the opportunity to "look into this and prepare motions to strike that strike." The trial court permitted the amendment and granted defendant's motion to bifurcate trial of the prior conviction allegations. Later, defendant waived a jury trial on the allegations, and the court trial on them was held over seven months later, on June 25, 2010.
The trial court may, in its discretion, permit amendment of the information at any stage of the proceedings, provided the amendment does not change the offense charged by the original information to one not shown by the evidence taken at the preliminary examination. (§ 1009; People v. Winters (1990) 221 Cal.App.3d 997, 1005.) If the defendant's substantial rights would be prejudiced by the amendment, the court may grant a reasonable continuance no longer than the ends of justice require. (§ 1009; Winters, at p. 1005.) "[W]hether the prosecution should be permitted to amend the information and whether continuance in a given case should be granted are matters within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of discretion." (Winters, at p. 1005.)
Because the prosecution need not introduce evidence of prior convictions at the preliminary hearing to support a strike allegation in the information (Miranda v. Superior Court (1995) 38 Cal.App.4th 902, 909), we need not address whether the amendment changed the nature of the offense shown at the preliminary hearing.
We conclude the trial court did not abuse its discretion and that the amendment did not deprive defendant of constitutionally adequate notice. The strike allegation was based upon the same prior voluntary manslaughter conviction as was the section 667.5, subdivision (b) allegation contained in the original information. Defendant was thus clearly aware that the prosecution alleged that he had a prior conviction and intended to try to use it to lengthen his prison term if he were convicted of any of the charged offenses. The section 667.5, subdivision (b) allegation thus alerted defendant that an issue in the case would be whether defendant had actually suffered the prior conviction. The filing of the amended information containing the strike allegation provided defendant with constitutionally adequate notice of the strike allegation itself. Defendant had more than seven months after the amendment of the information to prepare for the court trial on the strike allegation and the other allegations based upon his prior conviction. In particular, defendant had ample time to investigate whether the prior conviction was his, and he asked the court to exercise its discretion to vacate its strike finding under People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant argues on appeal that he was prejudiced by the late amendment because the strike allegation subjected him to double punishment. This prejudice stemmed from the nature of the allegation and its truth, not the timing of the amendment. Defendant has not identified any prejudice that flowed from the timing of the amendment. When the amended information was filed, he had not yet presented, or lost his opportunity to present, a defense to prior conviction allegations. He had not passed up a plea offer for a term that would be less than a second strike sentence because, according to the undisputed representation of the prosecutor, no plea offer had been made in the case. In short, nothing in the record suggests any prejudice to defendant arising from the timing of the amendment. 7. Pitchess review
Before trial, defendant filed a motion to discover peace officer personnel records for Officers Smith, Sal Flores, and Fung. The trial court granted the motion with respect to matters reflecting upon the "truth and veracity" of Smith and Flores. The court conducted an in camera review of complaints produced by the custodian of records for the LAPD. It found 10 relevant complaints against Flores and 4 against Smith and ordered them disclosed to defendant.
Defendant requests this court to review the record of the in camera proceedings to determine whether the trial court ordered disclosure of all responsive material.
A defendant seeking discovery of a police officer's personnel records and complaints against such officers must file a motion describing the type of records sought and showing, inter alia, the materiality of the information to the subject of the pending action and good cause for disclosure. (Evid. Code, §§ 1043, 1045.) Upon such a showing, the trial court examines the records in camera and discloses only those, if any, that are both relevant to the pending action and are not statutorily excluded from disclosure by Evidence Code section 1045, subdivision (b). (People v. Mooc (2001) 26 Cal.4th 1216, 1226-1227.) To facilitate appellate review, the trial court must make a record of what it reviewed by photocopying the documents, making a list of them, or simply stating for the record what documents it reviewed. (Id. at p. 1229.) We review the trial court's decision for abuse of discretion. (People v. Jackson (1996) 13 Cal.4th 1164, 1220.)
Such motions are commonly known as Pitchess motions. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531.)
Our review of the sealed reporter's transcript of the in camera review of documents produced by the LAPD shows the trial court properly exercised its discretion. It examined and described the nature of each complaint produced by the custodian. The only complaints the court did not order to be disclosed alleged matters that in no way reflected the officers' veracity. The court did not abuse its discretion.
8. Cumulative error
Defendant contends that the cumulative prejudicial effect of the various individual errors he has raised on appeal requires reversal of the judgment. His cumulative error claim has no greater merit than his individual assertions of error, which we have rejected.
9. Prior prison term enhancement
Defendant contends, and the Attorney General aptly concedes, that the section 667.5, subdivision (b) prior prison term enhancement was improperly imposed because it was based upon the same prior conviction as the section 667, subdivision (a)(1) enhancement the trial court imposed. (People v. Jones (1993) 5 Cal.4th 1142, 1150.) Accordingly, we strike the prior prison term enhancement.
DISPOSITION
The one-year Penal Code section 667.5, subdivision (b) enhancement is stricken, and the trial court is directed to issue an amended abstract of judgment omitting the enhancement and reducing the length of the determinate portion of defendant's term by one year. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J. We concur:
ROTHSCHILD, J.
CHANEY, J.