Opinion
F073505
05-18-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN EDWIN STRICKLAND, JR., Defendant and Appellant.
Sara E. Coppin, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF314692)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Brett R. Alldredge and Joseph A. Kalashian, Judges. Sara E. Coppin, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Judge of the Tulare Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Judge Alldredge presided on July 16, 2015; Judge Kalashian presided over all other hearings pertinent to this appeal.
-ooOoo-
Defendant John Edwin Strickland, Jr., was charged with attempted murder (Pen. Code, §§ 187, subd. (a), 664 [count 1]) and assault with a deadly weapon (§ 245, subd. (a)(1) [count 2]). The information further alleged he personally inflicted great bodily injury (§ 12022.7, subd. (a)); personally used a deadly weapon (§ 12022, subd. (b)(1)); was previously convicted of first degree burglary, a qualifying "strike" offense (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and serious felony (§ 667, subd. (a)(1)); and previously served three separate prison terms (§ 667.5, subd. (b)). Following a trial, the jury acquitted defendant of attempted murder, convicted him of assault with a deadly weapon, and did not find true the allegation he personally inflicted great bodily injury. In a bifurcated proceeding, the trial court found true the allegations related to his prior convictions. Defendant received an aggregate sentence of 11 years, consisting of a doubled base middle term of six years plus five years for his prior serious felony conviction. Enhancements for his deadly weapon use and prior prison terms were stayed.
Subsequent statutory citations refer to the Penal Code unless otherwise stated.
On appeal, defendant contends the trial court improperly quashed a subpoena duces tecum and should have granted his Romero motion. In addition, he asks us to review the sealed transcript of the court's in-camera hearing and determine whether it properly ruled on his Pitchess motion.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We conclude the trial court did not abuse its discretion when it granted a third party's motion to quash defendant's subpoena; denied defendant's Romero motion; and concluded certain peace officers' personnel records contained no discoverable material.
STATEMENT OF FACTS
At all relevant times, officers Puente, Lopez, and Trevino were members of the Tulare Police Department.
On March 12, 2015, at or around midnight, Puente met Lopez and Trevino, inter alios, at a bar in Kingsburg. The three officers were off duty. Sometime after he arrived, Puente went to the restroom. There, he "rubbed shoulders" with defendant. Puente apologized, but defendant seemingly ignored him. Later, however, while Puente, Lopez, and Trevino were conversing, defendant glared at them. When Puente and Lopez were at the bar, defendant approached and asked Puente, "Do you have a problem with my friend?" Puente answered, "No, I don't have a problem with your friend. I don't know what you're talking about." Defendant, who appeared intoxicated, retorted, "No. You do have a problem with my friend." He "got very close to [Puente's] face." At that point, security guards intervened. One of them asked, "Hey, what's going on? What's happening here?" Puente pointed to defendant and said, "This guy is drunk. He's trying to start a fight. You need to get him out of here." Defendant raised his left hand and struck Puente's neck. The assistant manager and the guards immediately escorted defendant out of the premises. Thereafter, Puente "felt some warmth" on his neck. He touched it and "saw there was blood" on his hand. Puente had sustained a four- to five-inch laceration. He told Lopez and Trevino, "This guy just stabbed me."
The assistant manager and the guards were still outside with defendant when Lopez exited the bar and announced defendant "just stabbed a cop." Before he was subdued, defendant tossed a box cutter into some nearby bushes.
DISCUSSION
I. The trial court did not abuse its discretion when it granted a third party's motion to quash defendant's subpoena duces tecum.
a. Background.
On May 22, 2015, defense counsel issued a subpoena duces tecum requiring the Tulare Police Officers Union (Union) to produce "[a]ny notes or records made by union officials or representatives in response to any administrative investigation into the conduct on or about March 11, 2015[,] of Officers . . . Lopez, . . . Puente, and . . . Trevino." In a response letter, Union counsel indicated "no [such] records—if indeed any such records . . . ever existed—will be produced in response to the [subpoena]." Defense counsel filed a motion for contempt.
In a subsequent declaration, defense counsel specified he sought "any statements made to union representatives by . . . Officers Lopez, Puente, and Trevino respecting any administrative investigations conducted by Tulare Police Department into the events related to the crime, if any, of which [defendant] stands accused."
In turn, Union counsel filed a motion to quash the subpoena duces tecum. He argued, inter alia, section 832.7 and Government Code section 3303, subdivision (i), prohibit disclosure of the requested information; defense counsel should have filed a Pitchess motion instead; and the court should impose sanctions for abuse of process. In an opposition to Union's motion, defense counsel asserted the cited statutes do not prohibit disclosure; alternatively, if Government Code section 3303 prohibits disclosure, the provision is unconstitutional.
At a July 16, 2015, motion hearing, the court apprised the parties:
"First of all, it is not my intention to ascribe any sanction or find any contempt in this case. I don't believe anybody's conduct has arisen anywhere close to . . . [w]hat could be characterized as contemptuous.
"Two, to the extent that I believe [defense counsel] is urging this court to find the subject statutes to be unconstitutional, it's not my intention
to do that as well. There is case authority that has sustained that in the past, and I cannot find anything . . . contrary to that authority . . . .
"Now, with respect to the real gravamen of what we're here for, I believe, unless I am missing something completely, that [defense counsel] wants to see records that relate to any administrative discipline and/or internal investigations that relate to these three officers who I assume are arresting officers in this crime case against [defendant].
"Now, it is clear in this state as to what that procedure should be. Those documents are not available through subpoena. They're not available by the District Attorney proffering those through the Evidence Code. They have to be obtained through what is oftentimes referred to as a Pitchess procedure. These are confidential records. They've been declared many times by the highest courts of this state to be confidential records. And that confidentiality has to be preserved . . . .
"It is difficult for me to avoid a conclusion that what [defense counsel] want[s] to do . . . is to simply duck or circumvent that established process solely because one or more of these officers may have been joined or accompanied by a union representative at the time he or she was part of this administrative process; as if that in and of itself waives any and all rights of confidentiality that are clearly set forth in the code. . . . Government Code [s]ection[] 3303 . . . , which w[as] cited both in the motion and in the reply, . . . clearly states that a representative . . . shall not be required to disclose, nor be subject to any punitive action for refusing to disclose[,] any information received from the officer under investigation for noncriminal matters. I think that's about as clear as it could be. Because to rule otherwise would turn Pitchess on its head and then would put somebody in a situation - I say 'somebody,' an officer who may be subject to an internal affairs investigation, discipline process, a noncriminal process, that's important.
"It's clear that the Legislature has determined that [a peace officer] has a right to be accompanied by a representative. So if he or she chooses to have a representative there, in your argument, then, Pitchess goes out the window. Somebody can get all that information through a subpoena d[]uces tecum. I believe that is contrary to the statutory framework. I think someone doesn't elect to make that waiver at all and . . . it's certainly not explicit. I don't believe it's implicit in that choice. [¶] . . . [¶]
"But to make sure the record is clear that I understand what's happening, the People . . . are trying to prove the criminal case against [defendant]. You have a theory upon which you wish to obtain the
[confidential information of] the . . . officers . . . that is held in . . . the City of Tulare's . . . custody. And the way you're asking to do that is ordering the custodian of the records of the union to then make available to you any and all notes, information, et cetera that were manufactured because [union counsel] . . . accompanied one of the officers at one of those proceedings. I don't think you can do it in the fashion that you have done so for the reasons that I've stated." (Italics added.)After hearing counsels' arguments, the court ruled:
"I will, again, . . . find that there's been no conduct on the part of [defense counsel] or anybody in this case that even comes close to rising to contempt. Any request for sanctions or a finding of contempt is denied.
"Further, I find that the statute in question that has been challenged by . . . defendant through this process as being unconstitutional has been found to be constitutional, and I can't locate or even begin to articulate reasons why I would believe it is not. In fact, I am of the belief the courts of this state have found it to be constitutional and that portion of the motion or request from . . . defendant is denied.
"I believe that the state has clearly—and we do this as a fairly regular process in these courts—set forth a procedure by which the information sought in this case can be obtained and has been referred to. There is a process. It does require some prima facie showing. It does require a weighing and balancing. It does require all of the things that are subject to review and reversal if it's not done properly. And then, and only then, are those records examined to see if any such documents requested exist.
"I believe that's [defendant]'s option in this case. I concede, I mean, hypothetically, at some point in some situation the items that you are requesting may, in fact, be discoverable. I am not making any type of ruling that under no circumstance would . . . the notes or files of a union representative be completely and forever privileged and not subject to discovery. . . .
"But what I'm saying is, I can con[ceive] of a situation after documents are located, et cetera, if there are inconsistencies, if there's any possible reasonable question or dispute as to whether all documents have been disclosed or if there's additional information, it's possible that you could get this information. It's possible that you get it through a[ subpoena duces tecum] at some point. But I think you have to go through the Pitchess process first to even get there. I'm not trying to invite you to do
anything. I'm just saying at this point, the Pitchess process is the sole and exclusive method by which the Legislature has determined to be appropriate. And . . . Government Code [s]ection . . . 3300 . . . sets forth the right of an employee to have a union representative at his side and there is no presumptive implied or explicit waiver of that expectation to privacy because of that. For those reasons, the motion to quash the subpoena is granted." (Italics added.)
b. Analysis.
"A subpoena that requires the production of records, documents, or other things is known as a subpoena duces tecum." (City of Woodlake v. Tulare County Grand Jury (2011) 197 Cal.App.4th 1293, 1299.) In general, "[d]ocuments and records in the possession of nonparty witnesses and government agencies other than agents or employees of the prosecutor are obtainable by subpoena duces tecum." (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1318 (Barrett).) "Sections 1326 and 1327 set forth the procedure for either the prosecutor or the defendant to obtain discovery records possessed by third parties." (Id. at p. 1315; see People v. Hammon (1997) 15 Cal.4th 1117, 1128 ["That the defense may issue subpoenas duces tecum to private persons is implicit in statutory law . . . and has been clearly recognized by the courts for at least two decades."].)
"A criminal defendant has a right to discovery by a subpoena duces tecum of third party records by showing 'the requested information will facilitate the ascertainment of the facts and a fair trial.' " (Barrett, supra, 80 Cal.App.4th at p. 1316, quoting Pitchess, supra, 11 Cal.3d at p. 536.) "The right of discovery in criminal cases is, of course, not absolute. The court retains wide discretion to protect against the disclosure of information that might unduly hamper the prosecution or violate some other legitimate governmental interest." (Barrett, supra, at p. 1316.)
A trial court's ruling on a motion to quash a subpoena duces tecum is reviewed for abuse of discretion. (See, e.g., People v. York (1980) 108 Cal.App.3d 779, 792; see also People v. Ayala (2000) 23 Cal.4th 225, 299 ["We generally review a trial court's ruling on matters regarding discovery under an abuse of discretion standard."].) "Under the abuse of discretion standard, 'a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Hovarter (2008) 44 Cal.4th 983, 1004; see People v. Kipp (1998) 18 Cal.4th 349, 371 ["A court abuses its discretion when its ruling 'falls outside the bounds of reason.' "].)
We conclude the court did not abuse its discretion when it granted Union's motion to quash. As noted, a court "retains wide discretion to protect against the disclosure of information that might . . . violate some other legitimate governmental interest." (Barrett, supra, 80 Cal.App.4th at p. 1316.) "In Pitchess . . . , [the Supreme Court] recognized that a criminal defendant may, in some circumstances, compel the discovery of evidence in . . . [a] law enforcement officer's personnel file that is relevant to the defendant's ability to defend against a criminal charge. 'In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as "Pitchess motions" . . . through the enactment of . . . sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.' [Citation.] By providing that the trial court should conduct an in camera review, the Legislature balanced the accused's need for disclosure of relevant information with the law enforcement officer's legitimate expectation of privacy in his or her personnel records. [Citation.]" (People v. Mooc (2001) 26 Cal.4th 1216, 1219-1220 (Mooc); see § 832.8, subd. (e) [" '[P]ersonnel records' means any file maintained under [the peace officer]'s name by his or her employing agency and containing records relating to any of the following: [¶] . . . [¶] . . . Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties."].)
Before he filed a Pitchess motion (see at p. 13, post), defense counsel issued a subpoena duces tecum. It did not require Tulare Police Department to produce documents in connection with any administrative investigation of Puente's, Lopez's, and Trevino's conduct on the night of the altercation; instead, it required Union to do so. As the court observed, the subpoena was based on the premise that an officer's expectation of privacy in personnel records relating to his or her employer's administrative investigations does not extend to his or her union representative's records on the same matters. Allowing such a subpoena would allow defense counsel to acquire the type of information analogous to the personnel records that are subject to the safeguards of the Pitchess procedure. The court's expressed concern that the subpoena "simply duck[s] or circumvent[s]" this process is not arbitrary, capricious, or patently absurd. II. The trial court did not abuse its discretion when it denied defendant's Romero motion.
a. Background.
On March 8, 2016, defense counsel filed a motion to dismiss the allegations defendant was previously convicted of first degree burglary, a qualifying "strike" offense and serious felony.
The report of the probation officer filed March 21, 2016, specified defendant was convicted of first degree burglary in July 1996. Although he was initially given probation, it was revoked five months later because he failed to report to the probation department, failed to report for drug testing, and failed to complete a drug and alcohol treatment program. Thereafter, defendant was sentenced to four years in prison. In October 1999, he was released on parole. In January 2001, in violation of his parole, defendant was charged with drug possession. In October 2001, he was convicted of possession of a controlled substance with one or more prior convictions, a felony, and sentenced to 32 months in prison. In February 2003, defendant was released on parole. In September 2005, he was convicted of sexual battery, a felony, and sentenced to four years in prison. In November 2007, defendant was released on parole. In October 2010, he violated parole. In January 2011, defendant was convicted of driving with a blood alcohol concentration of or in excess of 0.08 percent as well as hit and run, both misdemeanors, and placed on probation. During a February 18, 2016, interview with the probation department, he admitted he "struggled with alcoholism" and "needs help in order to remain alcohol free."
At a March 21, 2016, hearing, defense counsel argued the prior felony conviction allegations should be dismissed in view of "how old the prior strike is and how dissimilar it is from [the] current offense." The prosecutor commented on defendant's multiple convictions after 1996 and the "sheer callousness" of the March 12, 2015, assault. The court, which also received and considered the probation report, ruled:
"I'm not going to strike the prior strike conviction, essentially because [defendant] has suffered felony convictions since that time. So I don't believe that it's warranted to be stricken. So it won't be. I don't find it is and I don't believe it's unconstitutional to impose it as an unusual or excessive punishment."Later, with regard to whether it would use the base upper term during sentencing, the court remarked:
"[T]he last place [defendant] should be with his problems is a bar. And not only being in a bar, but consuming alcohol. It turns him into a different person, obviously . . . . [B]ar fights don't always happen to have someone use a type of cutter that was used here and go right for somebody's neck. That's rough."
b. Analysis.
"[A] judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." (§ 1385, subd. (a).) This provision "permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law." (Romero, supra, 13 Cal.4th at pp. 529-530; accord, People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, . . . the court . . . must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, supra, at p. 161; accord, People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony); see People v. Myers (1999) 69 Cal.App.4th 305, 310 ["The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary."].)
"[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion." (Carmony, supra, 33 Cal.4th at p. 375.) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citation.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-377.) Hence, "a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances." (Id. at p. 378.)
As noted, defendant bears the burden of demonstrating the court's ruling was irrational or arbitrary. (Carmony, supra, 33 Cal.4th at p. 376.) On appeal, he emphasizes "the prior strike offense is nearly 20 years old." "In determining whether a prior conviction is remote, the trial court should not simply consult the Gregorian calendar with blinders on. To be sure, a prior conviction may be stricken if it is remote in time. In criminal parlance, this is sometimes referred to as 'washing out.' [Citations.] The phrase is apt because it carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways." (People v. Humphrey (1997) 58 Cal.App.4th 809, 813 (Humphrey).) Here, the record establishes a "lack of meaningful crime-free periods." (People v. Philpot (2004) 122 Cal.App.4th 893, 907 (Philpot).) Defendant "has led a continuous life of crime after the prior" (Humphrey, supra, at p. 813) and has repeatedly failed to abide by the terms and conditions of probation and/or parole (Philpot, supra, at pp. 904, 906-907). "His conduct as a whole was a strong indication of unwillingness or inability to comply with the law." (Philpot, supra, at p. 906.) "Far from being 'washed out,' [defendant's] prior was 'dyed in.' " (Humphrey, supra, at p. 813.)
We also disagree with defendant's characterization of his subsequent convictions as "relatively non-serious." In 2001, defendant was convicted of possession of a controlled substance with one or more prior convictions. In 2005, he was convicted of sexual battery. In 2011, defendant was convicted of driving under the influence of alcohol as well as hit and run. In the instant case, while under the influence of alcohol once again and without provocation, he used a box cutter to slash the victim's neck. If anything, defendant's criminal history evinces a pattern of escalating gravity and violence.
Finally, defendant points out he was "gainfully employed" at the time of his arrest. This factor alone is unavailing. "Striking a prior serious felony conviction ' "is an extraordinary exercise of discretion, and is very much like setting aside a judgment of conviction after trial." [Citation.]' [Citation.] Accordingly, such action is reserved for '[e]xtraordinary' circumstances. [Citation.] This case, however, is far from extraordinary." (Philpot, supra, 122 Cal.App.4th at p. 907.) Defendant "appears to be 'an exemplar of the "revolving door" career criminal to whom the Three Strikes law is addressed.' [Citation.]" (Carmony, supra, 33 Cal.4th at p. 379.) Thus, we cannot find the court's decision not to strike his prior serious felony conviction irrational or arbitrary. III. The trial court did not abuse its discretion when it concluded Puente's, Lopez's, and Trevino's personnel records contained no discoverable material.
a. Background.
On October 22, 2015, defense counsel filed a motion for discovery of Puente's, Lopez's, and Trevino's personnel records, seeking materials related to dishonest conduct by the three officers. On November 19, 2015, the court conducted an in-camera hearing, found no discoverable material, and sealed the reporter's transcript.
On appeal, defendant asks us to "conduct an independent review of the sealed record . . . to determine whether the trial court abused its discretion in failing to disclose information from the officer's [sic] personnel file." (Boldface and capitalization omitted.) The Attorney General does not oppose this request.
b. Analysis.
" 'A criminal defendant has a limited right to discovery of a peace officer's personnel records. [Citation.] Peace officer personnel records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045.' [Citation.]" (People v. Yearwood (2013) 213 Cal.App.4th 161, 180; see Mooc, supra, 26 Cal.4th at p. 1220 [California Legislature codified Pitchess motions].) "[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant." (People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines), citing Evid. Code, § 1043, subd. (b).) "Good cause for discovery exists when the defendant shows both ' "materiality" to the subject matter of the pending litigation and a "reasonable belief" that the agency has the type of information sought.' [Citation.]" (Gaines, supra, at p. 179.)
"If the trial court concludes the defendant has . . . made a showing of good cause, the custodian of records should bring to court all documents 'potentially relevant' to the defendant's motion" (Mooc, supra, 26 Cal.4th at p. 1226) and "the court must review the requested records in camera to determine what information, if any, should be disclosed" (Gaines, supra, 46 Cal.4th at p. 179). "Subject to statutory exceptions and limitations . . . the trial court should then disclose to the defendant 'such information [that] is relevant to the subject matter involved in the pending litigation.' " (Mooc, supra, at p. 1226, quoting Evid. Code, § 1045, subd. (a).) "A trial court's ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion." (People v. Hughes (2002) 27 Cal.4th 287, 330.)
Here, the court followed the proper procedure and created an adequate record of the November 19, 2015, in-camera hearing. (See Mooc, supra, 26 Cal.4th at pp. 1228-1229.) We have examined Puente's, Lopez's, and Trevino's confidential personnel files. We find no abuse of Pitchess discretion. (People v. Samayoa (1997) 15 Cal.4th 795, 827.) Thus, we uphold its ruling.
DISPOSITION
The judgment is affirmed.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
FRANSON, J.