Opinion
B226298
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. VICKI SMITH, Defendant and Appellant.
Judith Vitek, 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, Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA369206)
APPEAL from a judgment of the Superior Court of Los Angeles County, John S. Fisher, Judge. Affirmed in part, reversed in part, and remanded with directions.
Judith Vitek, 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, Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Vicki Smith appeals from the judgment following her jury conviction of sale and possession for sale of cocaine base. Defendant argues that the trial court erred in denying her motion under California v. Trombetta (1984) 467 U.S. 479 (Trombetta), which was based on the destruction of an allegedly exculpatory surveillance video. We affirm the conviction, but because the trial court did not orally pronounce sentence on count 2, we remand for sentencing on that count and for correction of the abstract of judgment.
FACTUAL AND PROCEDURAL SUMMARY
On March 16, 2010, Officer Paul Valencia, using binoculars, observed defendant and another woman engaging in what appeared to be a street drug sale in downtown Los Angeles. Defendant removed a baggie containing off-white solids from her waistband. The woman gave defendant money, and defendant handed the woman one off-white solid resembling rock cocaine. Officer Valencia radioed the description of the two women to the rest of the narcotics team. The buyer was arrested near Officer Valencia's car, and a solid she discarded was recovered by one of the arresting officers.
Defendant was arrested later that evening. Because no female officer was present at the arrest, defendant was not searched in the field. Defendant was handcuffed, and Officer Valencia rode with her in the back seat of a police car. At the police station, defendant was seated at an arrest bench in the booking area while Officer Valencia filled out paperwork. She was seated on a bench between two other arrestees with her back turned to Officer Valencia. Defendant fidgeted and appeared to be trying to reach into her rear waistband area. Officer Valencia repeatedly told her to sit still. He then noticed a baggie with two off-white solids on the floor about three or four feet from defendant, in between her and another arrestee who was seated on the bench about six feet away. Officer Valencia had not seen the other arrestee move. The baggie recovered from the floor of the police station was booked into evidence along with the baggie recovered in the field and $259 found in defendant's sock. The baggies contained cocaine base.
Defendant was charged with sale of cocaine base (Health & Saf. Code, § 11352, subd. (a)) and possession of cocaine base for sale (Health & Saf. Code, § 11351.5). Two prior prison terms and two prior drug convictions also were alleged. (Pen. Code, § 667.5, subd. (b); Health & Saf. Code, § 11370.2).
On July 13, 2010, before opening statement and once again before the cross-examination of Officer Valencia, defense counsel argued that police had prejudicially destroyed a surveillance video of the booking area that had been requested in discovery. The court denied what it considered to be a Trombetta motion. Officer Valencia testified that he viewed the surveillance video of the area where defendant was seated. The video quality was poor. He could see defendant fidgeting and taking a small object from her waistband, but he could not see her dropping it on the floor. After the close of testimony, the court denied a discovery sanction, reiterating that the video was not exculpatory and was not destroyed in bad faith. The prosecutor elected not to rely on the rock cocaine found at the police station for count 2. In closing, the prosecutor argued to the jury that while this evidence was incriminating, it was insufficient to support the possession for sale charge.
The July 8, 2010 minute order indicates that defendant did not want a hearing on the issue.
The jury convicted defendant as charged, and defendant admitted the alleged priors. The court sentenced defendant to seven years in prison on count 1, consisting of a middle-term of four years and one three-year enhancement, with 246 days in credits. It imposed a $30 conviction fee and $30 security fee per count, as well as a $200 restitution fine and a $50 laboratory analysis fee. It imposed and suspended a $200 parole fine.
This timely appeal followed.
DISCUSSION
I
Defendant's sole contention on appeal is that the destruction of the surveillance video violated her right to due process.
The due process clause of the Fourteenth Amendment requires police to preserve evidence "that might be expected to play a significant role in the suspect's defense." (Trombetta, supra, 467 U.S. at p. 488.) The destruction of evidence violates due process when the exculpatory value of the evidence was apparent before it was destroyed, and no comparable evidence is reasonably available. (Id. at p. 489.) When the exculpatory value of the evidence requires subjecting it to tests, the defendant must show bad faith on the part of police in failing to preserve potentially useful evidence. (Arizona v. Youngblood (1988) 488 U.S. 51, 57-58 (Youngblood).)
We review the trial court's ruling on a Trombetta motion for substantial evidence. (People v. Roybal (1998) 19 Cal.4th 481, 510.)
The exculpatory nature of the surveillance video did not depend on additional tests. Thus, whether police destroyed the video in bad faith is not an issue. (See Youngblood, 488 U.S. at p. 58.) Nor is there actual evidence of bad faith. Defense counsel represented to the court that the prosecutor in charge of responding to the defense's discovery request failed to make a timely request of the video from the police department. It appears, therefore, that the video was routinely rather than strategically destroyed.
The court's conclusion that the video was not apparently exculpatory is supported by substantial evidence. Officer Valencia testified that the video showed defendant fumbling with her waistband and taking a small object from it. While he could not see her drop the object onto the floor, defendant's other actions captured on the video tended to incriminate her.
Moreover, since the prosecutor elected not to base any count on the cocaine found on the floor of the police station, we are satisfied beyond a reasonable doubt that the verdict was not tainted by any error of federal constitutional dimension. (Chapman v. California (1967) 386 U.S. 18, 24.)
II
The People request that we modify the judgment to correct various sentencing errors. Defendant has not replied to this request.
The trial court did not orally pronounce a sentence on count 2 although the minute order and abstract of judgment reflect a concurrent sentence of 246 days in county jail on that count with credit for time served. At sentencing the prosecutor argued that Penal Code section 654 applied to the punishment to be imposed in this case, but the reporter's transcript, the minute order, and the abstract of judgment are all silent on whether the sentence on count 2 was stayed.
Since defendant was convicted on two counts, the court was required to impose sentence on each count and then stay execution as necessary to implement section 654. (People v. Alford (2010) 180 Cal.App.4th 1463, 1468-1469.) The court's oral pronouncement constitutes the judgment; entering that judgment in the minutes is purely a clerical function. (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9; People v. Mesa (1975) 14 Cal.3d 466, 471.) When the trial court fails to pronounce judgment on counts on which a defendant was validly convicted, we are authorized to remand for pronouncement of a judgment in accordance with the verdict. (People v. Taylor (1971) 15 Cal.App.3d 349, 353.)
We remand for the trial court to orally pronounce a sentence on count 2 and to stay its execution under Penal Code section 654 as necessary. Additionally, under our authority to correct clerical errors (People v. Mitchell (2001) 26 Cal.4th 181, 185), we order the abstract of judgment corrected to reflect the $50 laboratory analysis fee the court orally imposed.
DISPOSITION
The conviction is affirmed. The sentence is reversed, and the case is remanded for an oral pronouncement of sentence on count 2. The abstract of judgment also must be amended to include a $50 laboratory analysis fee.
NOT TO BE PUBLISHED IN THE OFFFICIAL REPORTS
EPSTEIN, P. J. We concur:
WILLHITE, J.
MANELLA, J.