Opinion
B185988
12-1-2006
THE PEOPLE, Plaintiff and Respondent, v. REGINALD KOVAL SIBLEY, Defendant and Appellant.
Robert H. Pourvali, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Reginald Koval Sibley appeals from the judgment entered following his conviction by jury of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) with a court finding that he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)) and a prior felony conviction for which he served a separate prison term (Pen. Code, § 667.5, subd. (b)). The court sentenced him to prison for five years.
In this case, in which appellant made a Pitchess motion to discover information in the personnel files of three police officers, we hold the trial court erred by denying the motion to the extent it sought from the files evidence of the officers dishonesty. Appellant made a good cause showing that any evidence of dishonesty in the personnel files was material to the subject matter of the litigation. The motion presented not only a specific factual scenario of alleged police misconduct, but a scenario that established a plausible factual foundation, that is, a scenario that might have occurred. This is true since the motion not only denied allegations in a police report that appellant committed the above offense, but presented detailed evidence of what allegedly did occur, supporting a defense that appellant did not commit the present offense and police allegations to the contrary were fabricated.
However, we conclude the motion was overbroad to the extent it requested information other than evidence of dishonesty from the officers personnel files. Finally, we conclude the trial courts error was prejudicial; therefore, we will reverse the judgment and remand the matter with appropriate directions.
We reject appellants claim that the trial court erroneously refused to sanitize, pursuant to Evidence Code section 352, impeachment evidence of appellants prior felony conviction by excluding reference to the fact that the felony was kidnapping. There is no automatic limitation on evidence of the nature of an impeaching felony and the trial courts refusal was well within the courts discretion. Moreover, in light of the ample evidence of appellants guilt, the alleged error was not prejudicial.
We conclude there is no need to reach the issue of whether the prosecutor committed misconduct during jury argument by appealing to the jurys sympathy. Appellant claims this occurred when the prosecutor argued that when the jury thought about why possession of a firearm by a felon was a crime, the jury should think about a testifying teenager who had been shot twice. Appellant waived the misconduct issue by failing to object and request an admonition. Moreover, the shootings of the teenager were unrelated to the present case and the jury reasonably would have viewed them as such. The court admonished the jury on the issue and, in light of the ample evidence of appellants guilt, any error was harmless.
We hold the trial court properly refused to strike, pursuant to Penal Code section 1385, appellants Three Strikes law prior felony conviction. In light of the nature and circumstances of appellants current felony offense and the qualifying prior conviction (a 1997 kidnapping conviction), and in light of the particulars of his background, character, and prospects, appellant cannot be deemed outside the spirit of the Three Strikes law as to the prior conviction.
FACTUAL SUMMARY
1. Peoples Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that about 5:00 p.m. on January 20, 2005, Los Angeles Police Officer Peter McCoy and his partner, Officer Flaherty, were on patrol in a marked black and white patrol car near 111th and Main. The officers saw about 30 people standing on the street and on sidewalks in the area. Appellant was standing in front of a driveway of the home at 149 East 111th, which was on the north side of the street.
Appellant looked at the officers, grabbed his right front waistband area with his right hand, and ran northbound up the driveway of the house. McCoy exited his vehicle and, believing appellant had a handgun, pursued him. McCoy briefly lost sight of appellant as appellant ran up the driveway.
During the pursuit, McCoy broadcast that he was pursuing an African-American male who was wearing a blue shirt and blue pants, and who possibly had a gun. McCoy climbed on top of a five-foot wall at the back of the yard and saw a gun fall in front of appellant as appellant was bending. Appellant picked up the gun, which was silver in color and had dark grips. Appellant continued fleeing.
Los Angeles Police Officer Dan Strojny heard McCoys broadcast and was in his patrol car on 110th and Main. When Strojny saw appellant, appellant was looking over his left shoulder and running towards Strojny. Strojny saw appellant holding something in his right hand near his front right pants pocket. Appellant then saw Strojnys car. Appellant turned and ran down a driveway.
Strojny exited his patrol car and he and his partner pursued appellant. Strojny briefly lost sight of appellant twice during the pursuit. However, at one point Strojny heard a sound like a "muffled metallic thud", as if a metal shed had been struck. Strojny saw appellant trying to hide behind a garage. Strojny detained appellant and determined appellant had no weapon on his person.
Strojny searched the area and found a loaded, stainless steel .45-caliber handgun on the metal roof of a shed located one property east of where appellant had attempted to hide. McCoy later arrived and identified appellant as the person whom McCoy had chased. McCoy also identified the gun recovered by Strojny as the one McCoy had seen appellant possess. McCoy testified that "this all occurred" in less than a minute. The parties stipulated that appellant suffered an April 2, 1997 felony conviction in case No. TA063659.
2. Defense Evidence.
In defense, appellant, who had suffered a 1997 kidnapping conviction, denied possessing or discarding a handgun on January 20, 2005, and denied being on 111th that day. Appellant and other defense witnesses presented the following version of the events leading to appellants detention.
During the afternoon of January 20, 2005, appellant visited Deandre Lacefield, who lived on 110th. Appellant testified during direct examination that he was pretty sure that he walked to Lacefields house. Appellant also testified he walked to Lacefields house "[f]rom probably just from around the corner, . . . 109th Street. I just be walking." (Sic.)
However, appellant also presented arguably conflicting testimony concerning how he arrived at Lacefields house. During cross-examination of appellant, the following occurred: "Q . . . Could you tell us now approximately what time did you get [to Lacefields house]? [¶] A I dont know. I just got dropped off. It was in the evening." Appellant later testified he "got dropped off in the neighborhood so Id walk around. . . ." Appellant testified his sister "probably" dropped him off.
Later, appellant testified he was dropped off at a hamburger stand at 109th and Main, got something to eat, and (although he was then at the hamburger stand at 109th) walked around the corner to 109th. Appellant walked to the house of a person named Denise who lived on 109th between Main and Spring. Appellant testified that after he saw Denise, he walked back down 109th "because you could cross over Main and I know somebody" who stayed at 109th towards San Pedro. Appellant testified he was going to visit "somebody" besides Lacefield.
The following occurred during cross-examination: "Q . . . So after you leave Denise, . . . then you go to 109th walking to visit another friend? [¶] A No, really if you go down the block, its a group of young dudes . . . . I just go down there and hang with them . . . ." Appellant talked with that group, later left, and then went to Lacefields house. Appellant visited Lacefield for at least an hour, then left and walked westbound on 110th towards Main.
Appellant saw Norah Gonzalez with her sister and brother, and appellant spoke to them for a few minutes. After they conversed, appellant, wearing a blue short-sleeve T-shirt, blue jeans, and blue tennis shoes, continued walking westbound on 110th. Appellant was going to the home of an acquaintance, Anthony Campbell.
Appellant saw several police vehicles as he walked towards Main. Appellant continued walking and eventually entered the yard of Anthony Campbell. Appellant testified "I initially was going to go to [Campbells] house anyway but when I seen the police, it just gave me more reason to stay out they way because I knew the police car was — its not a regular police car." (Sic.) Appellant then testified the police car was a marked black and white patrol car.
Appellant walked to the back door of Campbells residence and knocked. Campbell lived in the back of the residence. Appellant did not try to hide. An officer ordered appellant not to move, and appellant complied. Police detained appellant. A fingerprint consultant testified no identifiable fingerprints were found on the gun or its magazine.
CONTENTIONS
Appellant contends (1) the trial court erroneously denied his Pitchess motion, (2) the trial court erroneously failed to sanitize the impeachment evidence of his prior kidnapping conviction, (3) the prosecutor committed misconduct during jury argument by appealing to the jurys sympathy, and (4) the trial court erroneously refused to strike, pursuant to Penal Code section 1385, appellants Three Strikes law prior felony conviction.
DISCUSSION
1. The Trial Court Partially Erred by Denying Appellants Pitchess Motion.
a. Pertinent Facts.
On May 4, 2005, appellant filed a pretrial discovery motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (hereafter, Pitchess motion). The Pitchess motion sought an order requiring the Los Angeles Police Department (LAPD) to make available "[a]ll complaints . . . relating to acts of aggressive behavior, violence, excessive force, or attempted violence or excessive force (hereafter `excessive force), racial bias, gender bias, ethnic bias, sexual orientation bias, coercive conduct, [and] violation of constitutional rights" by McCoy, Flaherty, and Strojny. The motion indicated appellant sought, inter alia, the names, addresses, and telephone numbers of all persons who had filed such complaints, who might have been witnesses, or who had been interviewed by the LAPD.
The motion also sought "[a]ll complaints . . . of officer misconduct amounting to moral turpitude . . . , including but not limited to allegations of false arrest, planting evidence, fabrication of police reports, fabrication of probable cause, false testimony, perjury, using excessive force, making false arrests, writing false police reports to cover up the use of excessive force, and false or misleading internal reports including but not limited to false overtime or medical reports." Finally, the motion sought related documents and information.
1) The Police Report.
The police report listed McCoy as the reporting officer and P. Flaherty (serial number 32266) as the arresting officer, and reflects, in pertinent part, as follows. On January 20, 2005, a Los Angeles police officer notified McCoy and Flaherty that the officer had seen about 60 to 70 people on the sidewalks and in the street at 111th, east of Main. Later that day, about 5:00 p.m., McCoy and Flaherty were in uniform and assigned to a gang enforcement detail. The officers were in a marked patrol vehicle in the area of 111th and Main, an area claimed by a Crips gang clique. The clique had been feuding with another Crips gang clique, resulting in shootings and homicides. In the officers experience, gang members feuding were more likely to arm themselves, fearing a retaliatory drive-by shooting.
While traveling eastbound on 111th from Main, McCoy and Flaherty saw a large group of people in the street and on the sidewalks. The officers continued eastbound toward the group when they saw appellant standing in front of 149 East 111th. Appellant looked in the officers direction and suddenly turned, grabbing his right front waistband area with his right hand. Appellant fled northbound up the driveway of the location, holding his right front waistband area. The officers exited their patrol car and, believing appellant had a gun, pursued him.
Appellant jumped over the rear wall of, and into the rear yard behind, 149 East 111th. Appellant continued northbound. As McCoy climbed on top of the rear wall, he was about 30 to 40 feet from appellant when McCoy saw a stainless steel handgun fall to the ground in front of appellant. Appellant got the gun, put it back in his waistband, and continued to flee. The officers continued into the rear yard but lost sight of appellant as he turned westbound on 110th.
McCoy also reported the following. Strojny and Los Angeles Police Officer Nguyen were on 110th and Main when they saw appellant. Appellant was running westbound on the south side of the street. Appellant looked in the direction of the officers and suddenly ran southbound through the driveway of 134 East 110th. The officers pursued appellant. As Strojny ran into the backyard by the garage, he heard a loud metallic sound coming from a location east of him. The officers located appellant near the rear of the garage and detained him. The officers conducted a patdown search of appellant but found no weapon on him. Strojny searched the area and recovered a loaded stainless steel .45-caliber handgun from the roof of a metal shed to the rear of 136 East 110th. McCoy positively identified the gun as the one he had seen appellant drop.
2) The Supporting Declaration of Appellants Trial Counsel.
Appellants trial counsel, Candis Glover, submitted a supporting declaration. The declaration, after summarizing the previously discussed facts alleged in the police report, stated, "The defense contends that the above-mentioned allegations are fabrications by the police officers in this case. Credibility is a material issue in this matter. [¶] The defendant denies being in possession of a handgun. The defense asserts that Mr. Sibley was walking on 110th when he initially spotted the police vehicle. Intending to avoid police officers since hes on parole, Mr. Sibley proceeded down the driveway of 132 E. 110th Street. Defendant was subsequently arrested. Defendant denies ever being at the house located at 149 E. 111th Street. He denies jumping the wall to the rear of 149 E. 111th Street. The defendant denies dropping a handgun. He further denies picking up a handgun and placing it in his waistband."
The declaration indicated, inter alia, that the information sought was relevant to the officers propensity to engage in excessive force and conduct involving moral turpitude. On May 13, 2005, a Los Angeles deputy city attorney, representing real party in interest LAPD, filed an opposition to appellants Pitchess motion.
3) Proceedings on the Motion.
At the May 27, 2005 hearing on the Pitchess motion, appellant, apparently relying on People v. Johnson (2004) 118 Cal.App.4th 292, argued he had made the requisite good cause showing to obtain the requested materials. A deputy city attorney argued that the statement in appellants counsels declaration that appellant intended to avoid police because he was on parole begged the question of whether he avoided police because of noncompliance with parole conditions or because he was subject to a search condition and police would have discovered the gun.
The deputy city attorney suggested that appellant was arguing that Johnson stood for the proposition that a denial of police allegations was a sufficient showing of good cause. The court indicated appellant was not arguing that, but was arguing that his factual showing was similar to that presented in Johnson. The court also commented, "I dont think [appellants counsel is] taking the broader step saying that an outright denial is sufficient, because clearly thats not the law."
The court later stated, "The question is whether or not its sufficient here. And one of the comments in the opposition that I found of interest was . . . the comment that the defendant does not set forth any facts regarding the route that he used in attempting to evade the officers. The court is left to speculate about the defendants routes and actions on the day in question. And that is something that doesnt . . . establish a specific factual scenario that would lead the court to make some judgments about the materiality of the officers — the points having to do with the officers in other cases. [Sic.] [¶] I think that sums it up pretty clearly in a very brief way. [¶] I dont think this is anything other than an outright denial, and I dont think that that, even considering the Johnson case which Im familiar with, is enough. [¶] So Im going to respectfully deny the motion based on an insufficient showing of a factual scenario and terminate these proceedings."
b. Analysis.
Appellant claims the trial court erred by denying his Pitchess motion. We partially agree.
1) Warrick v. Superior Court.
In Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick), the defendant in a narcotics case made a Pitchess motion, seeking disclosure of citizen complaints against arresting officers for making false arrests, falsifying police reports, or planting evidence. The defendant also sought extensive discovery concerning other alleged misconduct by the officers. (Id. at p. 1017.) The appellate court, upholding the trial courts denial of the motion, concluded the defendants showing of good cause was insufficient because he failed to articulate a plausible factual foundation for his officer misconduct claim. (Id. at p. 1018.)
Warrick, holding the appellate court reversibly erred (Warrick, supra, 35 Cal.4th at pp. 1018, 1023-1026, 1028), stated that to show good cause, defense counsels affidavit must, inter alia, "describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report. . . . [¶] In other cases, the trial court hearing a Pitchess motion will have before it defense counsels affidavit, and in addition a police report, witness statements, or other pertinent documents. The court then determines whether defendants averments `[v]iewed in conjunction with the police reports, and any other documents suffice to `establish a plausible factual foundation for the alleged officer misconduct . . . ." (Id. at pp. 1024-1025, italics added.)
Warrick later stated, "We conclude that a plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial. . . . Once that burden is met, the defendant has shown materiality under section 1043." (Warrick, supra, 35 Cal.4th at p. 1026, italics added.)
2) The Trial Court Erred By Denying Discovery of Evidence of Dishonesty.
As mentioned, appellants version of what occurred is set forth in the declaration of his trial counsel. Appellant, through his counsel, denied possession of a handgun. Moreover, similar to the case in Warrick, in this case appellant asserts, through his counsel, that the allegations in the police report are fabrications. As mentioned, it is in that report that McCoy claimed he saw appellant in possession of the gun which Strojny later found in circumstances indicating appellant had discarded it while Strojny saw him fleeing. Appellant denied being at a house at 149 East 111th, denied jumping the wall at the rear of that location, and denied dropping or picking up a handgun or putting one in his waistband.
Further, appellant did more than merely make the above mentioned denials. He set forth a sufficiently detailed, and allegedly factual, account of events that affirmatively occurred. Appellant asserted he was walking on 110th. He was there when he initially spotted police. He proceeded down the driveway of 132 East 110th, intending to avoid police. He sought to avoid police because he was on parole. Police arrested him. Reduced to its essence, appellant made a showing that he was innocently walking down 110th without a gun when he saw police, fled to avoid the police, and was detained without cause. Appellant set forth a detailed scenario which, if true, established his complete innocence.
Moreover, appellants scenario was plausible because it was one that "might or could have occurred" (Warrick, supra, 35 Cal.4th at p. 1026), that is, it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. (Ibid.) Appellants version of the facts generally supported his proposed defense that he did not commit the crime and police allegations to the contrary were fabricated. Given those facts, the issues of whether appellants scenario inspired belief, whether the police report presented a version of events that might have occurred and/or that conflicted with appellants version, and whether the police version might have been more persuasive than appellants version were irrelevant under Warrick. (Id. at pp. 1024-1026.)
In the present case, the court denied appellants Pitchess request for information from the files of McCoy, Flaherty, and Strojny relating to evidence of dishonesty, by which we mean evidence relating to the making of false arrests, planting evidence, fabricating police reports or probable cause, or committing perjury. We conclude this denial was error and that appellant made the good cause showing required by Evidence Code section 1045, subdivision (b), insofar as appellant sought information relating to evidence of dishonesty. (Warrick, supra, 35 Cal.4th at pp. 1016-1028.)
However, to the extent appellants Pitchess motion requested information other than evidence relating to dishonesty, we agree with respondent that the Pitchess motion was overbroad. (Cf. People v. Hill (2005) 131 Cal.App.4th 1089, 1096, fn. 7; see California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1021.) We note appellant asserts in his opening brief that his trial counsels supporting declaration "set forth a sufficient factual foundation showing the officers truthfulness was material to the case." (Italics added.)
We will reverse the judgment and remand the matter with appropriate directions. (People v. Johnson, supra, 118 Cal.App.4th at pp. 304-305; People v. Hustead (1999) 74 Cal.App.4th 410, 418-423 (Hustead).) We reject appellants claim that People v. Memro (1985) 38 Cal.3d 658 (Memro) compels reversal of the judgment and a new trial. As Hustead observes, Memro was a case in which the record demonstrated discovery error was prejudicial. (Hustead, supra, at p. 421.) There was discovery error here but, on this record, we cannot say whether it was prejudicial. We express no opinion as to whether any police officers committed misconduct in this case.
2. The Trial Court Did Not Err by Refusing to Sanitize the Prior Conviction.
a. Pertinent Facts.
Prior to appellants testimony at trial, he made a motion in limine to sanitize his prior kidnapping conviction. Appellants counsel stated, "I believe that the People still can impeach him with the fact of a prior conviction and the fact that that conviction being one of moral turpitude, and Id certainly be willing to stipulate to that." (Sic.) Appellant asked "that nothing other than the fact that he was convicted of a felony on the particular date come in." Under Evidence Code section 352, appellant sought to exclude evidence as to the nature of the prior conviction, that is, that it was a prior conviction for kidnapping.
The prosecutor argued the trial court should not exclude evidence of the nature of the prior conviction. The prosecutor, apparently addressing the issue of the admissibility of the fact (as distinct from the admissibility of the nature) of the prior felony conviction, commented the prior conviction was not remote. The prosecutor noted appellant had urged in his written motion that he had suffered the prior conviction in 1996. The prosecutor also noted, however, that appellant had been imprisoned for eight years and was released on parole in December 2004, a month before the present offense. Appellant replied that evidence of the date of the prior conviction was admissible to permit the jury to evaluate the significance of the prior conviction.
The court, after considering Evidence Code section 352, ruled that if appellant testified, the People could, for the purpose of impeachment, ask him during cross-examination whether he had suffered a kidnapping conviction in Los Angeles County. However, the court ruled the People could not ask for the date of the prior conviction.
b. Analysis.
Appellant claims the trial court erroneously refused to sanitize the impeachment evidence of his prior felony conviction by excluding reference to the fact that the felony was kidnapping. We disagree.
Appellant concedes "The proper purpose for the admission of the prior conviction — impeachment — could have been properly served with appellants stipulation that he had previously been convicted of a felony involving moral turpitude." In sum, appellant effectively concedes the trial court did not err to the extent it ruled that the fact that he suffered a prior felony conviction was admissible to impeach him. Appellant complains only that the trial court erred by refusing to exclude under Evidence Code section 352, the nature of the prior conviction, that is, the fact that the prior conviction was for kidnapping.
There is no automatic limitation requiring exclusion of evidence concerning the nature of a prior conviction used to impeach. Kidnapping reflects the readiness to do evil that defines moral turpitude. Although kidnapping is arguably more serious than possession of a firearm by a felon, the jury heard that appellant had been convicted of kidnapping, and this lessened the likelihood the jury convicted him of the present offense to punish him for the prior one.
Moreover, the prior conviction and the present offense did not involve the same type of offense. Insofar as remoteness is pertinent to sanitization, appellant served a lengthy prison sentence for the kidnapping and was first discharged from parole supervision in December 2004, about a month before the present offense. In any event, the trial court was not obligated to view the 1997 kidnapping conviction, which occurred about eight years before the present offense, as remote. (People v. DeCosse (1986) 183 Cal.App.3d 404, 411-412.)
The trial courts failure to sanitize the prior conviction did not prevent appellant from testifying. The courts refusal to sanitize the prior conviction by excluding reference to the nature of the felony was not error under Evidence Code section 352. (Cf. People v. Johnson (1991) 233 Cal.App.3d 425, 459; People v. Muldrow (1989) 202 Cal.App.3d 636, 646-647.) None of the cases cited by appellant compel a contrary conclusion.
Finally, appellant stipulated he had a prior felony conviction. The remaining issues, as appellant conceded to the jury, were whether a person possessed a handgun and whether appellant was that person. We have recited the pertinent facts in our Factual Summary. There was ample evidence that, as testified by police, appellant possessed a handgun. The jury reasonably could have viewed appellants defense testimony as to his whereabouts before he arrived at Lacefields house as conflicting and evidence of fabrication. Appellant was impeached by his prior conviction. In short, even if we leave aside the evidence of the nature of appellants prior conviction, there was ample evidence of his guilt of the present offense. The verdict reasonably may be construed as reflecting the jurys view that appellants defense evidence was fabricated. The alleged evidentiary error was not prejudicial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)
3. No Prejudicial Prosecutorial Misconduct Occurred.
a. Pertinent Facts.
Lacefield testified as a defense witness that during the evening of January 20, 2004, appellant visited Lacefield at Lacefields house at 110th and Main. During cross-examination, Lacefield testified, inter alia, that appellant stayed over 30 minutes. He also testified he was shot twice in the head in that neighborhood.
During jury argument, appellant commented, inter alia, that the issues for the jury were possession and identification. During closing argument, the prosecutor commented: "Youll be happy to know that Im practically done. This is the last point Im going to make. Perhaps the best witness on this case for the People was [Lacefield] when he walked up here, this 15-year-old who got shot in that neighborhood. A 15-year-old practically maimed, his arm shaking. When you see that 15-year-old kid, think about why we have that law."
The following then occurred: "[Defense Counsel]: Im going to object, your Honor. Its misconduct. [¶] The Court: Well, its outside the scope. [¶] Let me just tell you. Lawyers by way of closing argument have great latitude to argue their case but it has to be within reasonable parameters of the evidence. Ill leave it at that. [¶] You may continue. [The Prosecutor]: Thats all. Im just going to remind you, think of the law. Thank you. [¶] The Court: All right. Thank you, counsel."
b. Analysis.
Appellant claims the prosecutors previously quoted closing argument constituted misconduct by improperly appealing to the sympathy and passions of the jury. There is no need to decide the issue.
First, appellant waived the issue by failing to object and request that the trial court admonish the jury. (People v. Mincey (1992) 2 Cal.4th 408, 471.) Moreover, appellant concedes evidence was presented that Lacefield had been shot. We note appellant asserts that "the fact that . . . Lacefield had been shot in a totally unrelated incident to this case was part of the evidence."
The jury heard Lacefield testify. He did not testify, and the prosecutor did not argue (1) that appellant shot Lacefield, (2) that the gun in the present case was the firearm used to shoot Lacefield, (3) that the two Lacefield shootings were temporally or spatially close to each other, or (4) whether the Lacefield shootings, or either of them, were intentional, negligent, or accidental. The jury reasonably would have viewed the Lacefield shootings as separate from the present matter. Appellant does not claim the prosecutors challenged comments contained facts of which the jury previously had been unaware. The prosecutor did not argue that the jury should view an offense through the eyes of Lacefield. The prosecutors challenged comments were brief.
The jury heard the court indicate that the challenged comments were "outside the scope." The jury also heard the court state that counsel had great latitude in closing argument but "it had to be within the reasonable parameters of the evidence." Appellant did not ask for a further admonition. The jury is presumed to have followed the courts instruction (cf. People v. Sanchez (2001) 26 Cal.4th 834, 852) and to have evaluated the challenged prosecutorial comments accordingly. There was ample evidence of appellants guilt of the present offense, and the jurys verdict reasonably indicates the jury viewed the defense evidence as fabricated. The challenged prosecutorial comments were not prejudicial. (Cf. People v. Watson, supra, 46 Cal.2d at p. 836.)
4. The Trial Court Properly Denied Appellants Motion to Strike the Prior Felony Conviction.
a. Pertinent Facts.
A preconviction probation report prepared for a March 2005 hearing reflects as follows. Appellant was born on October 9, 1979 and had eight aliases. In 1996, appellant, as a juvenile, suffered a sustained petition for a violation of Vehicle Code section 10851, subdivision (a). The court remanded him to the California Youth Authority.
As an adult, appellant was convicted on October 8, 1997 of kidnapping (Pen. Code, § 207, subd. (a)) in case No. TA036059. The court sentenced him to prison for eight years. The report also reflects, "2-25-02 Custody: CDC count one — violation of parole." (Some capitalization omitted.) Appellant was discharged from parole supervision on December 11, 2004.
The probation officer indicated appellants arrest history was brief, but his previous prison sentence and the present offense justified imprisonment. The report listed as an aggravating factor that appellant served a prior prison term, indicated there were no mitigating factors, and recommended imprisonment for the "high-base term."
An information filed in April 2005 alleged, inter alia, that appellant suffered a prior felony conviction under the Three Strikes law based on an October 1997 conviction in case No. TA036059 for a violation of Penal Code section 207, subdivision (a).
On July 25, 2005, appellant filed a request to dismiss, pursuant to Penal Code section 1385, the 1997 conviction. The written request listed, as factors that could support dismissal, the minor nature of the current offense, the lengthy sentence that would still be imposed, and the fact that the prior conviction arose from a single period of aberrant behavior for which appellant served a single prison term. The request also listed as factors that appellant cooperated with police, his crime was related to drug addiction, and his criminal history did not include violence.
On July 29, 2005, the court found true that appellant suffered the 1997 kidnapping conviction. At the subsequent hearing on appellants request to dismiss that prior conviction, appellants argument was consistent with his written request to dismiss. He argued the present case was neither serious nor violent, he had not pointed the weapon at police, and his criminal record was insignificant.
Appellant also argued as follows. The kidnapping conviction arose from an incident that occurred when he was 16 years old, his participation in that incident had been minimal, another minor and an adult had been involved, and the adult had been the leader. Appellant was discharged from prison in early 2001 or 2002, and from that time until the present offense he had not been involved in criminal activity. The probation report listed only one aggravating factor. However, the fact that the present offense was only possession of a firearm, which is not a violent or serious felony, was a mitigating factor.
The People opposed the request to dismiss, arguing as follows. Appellants counsels representations concerning what happened during the incident giving rise to the kidnapping conviction were not evidence. Appellant served a lengthy prison sentence for the kidnapping, which was a serious crime. The present offense involved a loaded gun, and appellant fled from police. His testimony at trial was perjurious and there was no admission of responsibility. Appellant did not have much of a criminal history, but that was due to his previous lengthy imprisonment. Appellant was released from parole in December 2004, and committed the present offense one month later.
Appellant replied he had been released from prison custody in 2003 and discharged in 2004. Appellant argued he had a right to a jury trial; therefore, his testimony at trial should not be held against him.
The court acknowledged appellant had a right to a jury trial, but the court observed the jury had convicted him. The court also indicated as follows. The court had read appellants file. Gun charges were not minor in nature. The prior kidnapping conviction involved a serious or violent offense for which appellant had been imprisoned and, after serving a substantial portion of his sentence, he was released on parole. His parole was revoked and he was returned to state prison for 270 days. It was only on December 11, 2004, that appellant was discharged without parole conditions.
The court commented that the present offense was serious even without appellants prior kidnapping conviction. The court said that when the present offense was considered with the prior prison sentence and the minimal time appellant was free from custody, "I dont think [appellant], based upon all of the factors, given my understanding of Romero and the criteria set forth in Romero, is the kind of person whos deserving to have a strike struck." (Italics added.) The court noted it had stricken strikes in the past when a defendant had suffered strikes based on offenses committed close in time, and there had been a subsequent lengthy period of rehabilitation. The court observed that none of those factors were present in this case. The court also noted appellant had served substantial time in prison, he was discharged and, within six weeks, he was carrying a loaded firearm. The court denied appellants request to dismiss the prior kidnapping conviction which appellant suffered under the Three Strikes law.
b. Analysis.
Appellant claims the trial court erroneously refused to strike, pursuant to Penal Code section 1385, appellants Three Strikes law prior felony conviction. We disagree. The court read the probation report and appellants request to dismiss the prior felony conviction, and heard argument from the parties. We note that, although appellant claims the trial court "turn[ed] a blind eye towards appellants good record for the several years between the instant offense and the 1997 conviction," the probation report at least suggests that appellant violated parole during that period.
If we accepted appellants claim, we would be holding that the courts denial of appellants request to strike the prior felony conviction was irrational, capricious, or patently absurd (People v. Delgado (1992) 10 Cal.App.4th 1837, 1845; In re Arthur C. (1985) 176 Cal.App.3d 442, 446) and without even a fairly debatable justification. (People v. Clark (1992) 3 Cal.4th 41, 111.) Based on the record in the present case, we cannot come to that conclusion. In light of the nature and circumstances of appellants current felony offense and the qualifying strike, and the particulars of his background, character, and prospects, appellant cannot be deemed outside the spirit of the Three Strikes law as to the strike, and may not be treated as though he previously had not suffered it. (Cf. People v. Williams (1998) 17 Cal.4th 148, 161-164.)
We hold that the trial courts order refusing to strike the Three Strikes law prior felony conviction was sound, and not an abuse of discretion. (Cf. People v. Williams, supra, 17 Cal.4th at pp. 158-164; People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055; People v. Askey (1996) 49 Cal.App.4th 381, 389.) None of the cases cited by appellant, or his argument, compels a contrary conclusion.
DISPOSITION
The judgment is reversed and the matter is remanded with the following directions. Following remand, and consistent with the views expressed in this opinion, the trial court must conduct an in camera inspection of the requested personnel records of Los Angeles Police Officers Peter McCoy, P. Flaherty (serial number 32266) and Dan Strojny for relevance. If the trial courts inspection remand reveals no relevant information, the trial court must reinstate the judgment of conviction. If the inspection reveals relevant information, the trial court must order disclosure, allow appellant an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability the outcome would have been different had the information originally been disclosed. If appellant fails to demonstrate prejudice, the trial court must reinstate the judgment. (Cf. People v. Johnson, supra, 118 Cal.App.4th at pp. 304-305; People v. Hustead, supra, 74 Cal.App.4th at pp. 418-423.)
We concur:
KLEIN, P.J.
ALDRICH, J. --------------- Notes: We need not reach the issue of whether appellant waived his claimed due process issue by failing to raise it below. In any event, application of the ordinary rules of evidence, as here, does not violate due process. (See People v. Boyette (2002) 29 Cal.4th 381, 427-428.)