Opinion
D072370
03-26-2018
THE PEOPLE, Plaintiff and Respondent, v. LAMAR THOMAS, Defendant and Appellant.
Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. No appearances for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF35206) APPEAL from a judgment of the Superior Court of Imperial County, Marco D. Nunez, Judge. Affirmed. Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. No appearances for Plaintiff and Respondent.
A grand jury indicted defendant Lamar Thomas, a prison inmate, and codefendant Melissa Ann Gibson on multiple charges including possession of heroin in a state prison (Pen. Code, § 4573.6, count 5) and bringing, and/or assisting in bringing, heroin into a state prison (§ 4573, subd. (a), count 6). The indictment further alleged with respect to both counts that defendant had eight prior serious or violent felony convictions.
Gibson is not a party to this appeal.
All further statutory references are to the Penal Code.
The jury convicted defendant of both counts. The court in a bifurcated proceeding subsequently found beyond a reasonable doubt that defendant had committed each of the eight prior serious or violent offenses. The court sentenced defendant to the upper term of four years, doubled for the strike priors, for a total term of eight years to run consecutive to the sentence defendant already was serving.
Defendant timely appealed from his judgment of conviction. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appointed counsel filed a brief on behalf of defendant setting forth the facts of the case and requesting this court review the entire record. In addition, pursuant to Anders v. California (1967) 386 U.S. 738, appointed counsel set forth the following possible, but not arguable, issue to assist this court in conducting its Wende review: whether the court abused its broad discretion when it refused to exclude, or otherwise grant a mistrial based on, a surveillance videotape taken inside a state prison visiting room that appeared to show defendant retrieving an object from underneath Gibson's blouse and putting that object down the back of his pants, after the prosecutor was able to produce, among other evidence, a "discovery receipt" showing this particular videotape had in fact been turned over to the defense about a year before the trial.
On this court's own motion, defendant was given 30 days to file a supplemental brief on his own behalf. He did not file a supplemental brief. We now affirm his judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Luis Zappiem, a Department of Corrections officer, testified that, on October 20, 2012, at about 10:15 a.m., he was working as a "visiting officer" at the Centinela state prison; that in this capacity, his responsibility was to maintain a constant observation of all inmates and their visitors and to monitor the security system, including cameras, that he was operating; and that he was inside the elevated "officer's podium" when he noticed defendant and Gibson, who were seated at table 6, allegedly engaging in "suspicious activity."
Specifically, Zappiem observed defendant and Gibson were sitting side-by-side and were constantly watching Zappiem and the security camera located above them. Zappiem testified he saw defendant touching Gibson's breast for about five to 10 minutes while they sat. Next, Zappiem saw that defendant had an "unknown object" in his hand and that Gibson quickly stood up and move to an area near the table that obstructed the view of the security camera. At the same time, Zappiem saw defendant stand up and use his right hand to "reach inside his pants in the direction of his rear buttocks." Zappiem then surmised that they were attempting to hide or conceal the unknown item.
Zappiem testified that he had encountered about 20 or 25 similar situations in his capacity as visiting officer; that in his experience, this was a common method to smuggle contraband into the prison; and that typically an inmate will either swallow an item if it is small enough, or, as in the instant case, if the item is larger use his or her anal cavity to conceal the item.
Zappiem kept the security camera focused on table 6 where defendant and Gibson had been sitting. Over objection, the jury was shown the surveillance video of the incident, which appeared to corroborate Zappiem's testimony. The video showed defendant "holding what appeared to be an unknown tubular-shaped object"; Gibson standing up and walking across the table where they had been seated in an effort to obstruct the view of the camera and officers; and defendant standing up and "utilizing his right hand to reach inside his waistband as he appeared to be concealing an unknown item."
As discussed in more detail post, the record shows the prosecutor sought to introduce the video during trial, using Zappiem to authenticate it. Defense counsel objected after a few minutes of the video was played for the jury, arguing the prosecutor had never provided the defense with a copy of the surveillance video. After a lengthy argument outside the presence of the jury, the court ruled the videotape was admissible. --------
Zappiem testified he approached and instructed defendant to follow him to the inmate search area, where inmates are processed before and after their visits. Rather than comply, defendant became somewhat agitated and stated, "What's up, man? What's this all about?" When Zappiem repeated his request, this time defendant responded, "What the fuck, man? What do you want?" Zappiem next placed his right hand on defendant's left arm and together they went to the inmate search area.
Zappiem stated he was going to conduct an unclothed body search of defendant. Defendant in response began to resist by twisting and moving his arm, in an attempt to break Zappiem's control. At that point Zappiem activated his personal alarm device, as he was concerned for his safety and for the safety of defendant. Zappiem ordered defendant to the ground. Defendant refused this order and instead used his right hand to reach inside his waistband area, "as if he was attempting to work something or conceal something." Zappiem pushed defendant to the ground and finally with the help of other officers and the aid of pepper spray, handcuffed defendant.
Victor Cortes, also a Department of Corrections officer, was on duty on October 20. Cortes testified that he and another officer took custody of defendant from Zappiem; that while defendant was rinsing his face of pepper spray, Cortes observed defendant attempting to place his bound hands inside of his pants; that although defendant's hands were bound, he could still move his fingers; that defendant moved in the direction of the toilet; and that Cortes in response instructed defendant at least two or three times to keep his hands out of his pants and to move away from the toilet, which instructions defendant ignored. Because defendant continued to put his hands inside his pants, Cortes placed tape around defendant's waist and legs. Cortes testified defendant became even more agitated and made statements to the officers including, "I'm going to get you."
Cortes along with three other correctional officers next moved defendant to a holding cell. Before he was placed inside the cell, Cortes searched the cell, which was done "every time" before an inmate was placed inside. After the search uncovered no items, including contraband, defendant was placed in the cell by himself. Another correctional officer, Juan Valdez, monitored defendant while he was in the holding cell. Valdez estimated defendant was in the holding cell for about an hour, based on a log Valdez kept while keeping constant watch over defendant.
Defendant next was given a medical evaluation. Cortes instructed defendant to step out of the holding cell for the evaluation by medical staff. Once outside the cell, Cortes noticed the tape he earlier had placed around defendant's midsection had been moved "upwards on [defendant's] body and his pants were a little lower and there was a strong smell of feces in the room." Cortes then noticed there was feces on the back of defendant's clothing, "on the rear of his body." Once outside the holding cell, defendant sat against a wall and "wouldn't move."
After officers forced defendant to stand up, Cortes testified he saw a "bindle-looking object on the ground" where defendant had just been. Cortes estimated the object was about five inches long and about one inch wide. Valdez saw defendant trying to kick the object away from the area. Cortes and Valdez both noticed there were feces on the object. Valdez took possession of the bindle for testing.
Norma Espino testified she was on duty at Centinela state prison on October 20. Espino was asked to perform an unclothed body search of Gibson, who had consented to be searched. Once at an administration building, Espino asked Gibson if she had any contraband on her person. Gibson responded, "yes" and then produced an item that had been lodged between her breast and brassiere. Espino testified that the item was about four inches long and was wrapped in black electrical tape, which matched a tape roll found in Gibson's purse. Espino found no other contraband on Gibson. Espino turned over the item to her supervisor, Michael Ramirez.
Ramirez testified he took possession of the items found on Gibson and near defendant. Inside both bindles Ramirez found a "brown sticky substance." Ramirez, who was certified in the use of drug identification kits, conducted a "field test" on the sticky substance from both bindles that was positive for heroin. Later that day Ramirez interviewed defendant, which was recorded and played for the jury. Defendant denied the bindle found just outside the holding cell belonged to him.
Ramirez testified that drugs are available for purchase in prisons. Based on his training and experience, Ramirez testified that a gram of heroin can cost an inmate about $200, but that this was a "lowball estimate."
Following Ramirez's testimony, the parties stipulated that the substance found in both bindles was heroin, which had been confirmed by the Department of Justice; that chain of custody has been satisfied with respect to both bindles; and that one of the bindles was found to contain 30.45 grams of heroin and the other 23.71 grams of the drug. The record shows the defense presented no evidence.
DISCUSSION
The Anders issue raised by appointed counsel requires us to examine whether the court abused its discretion when it denied defendant's motion for mistrial and/or to exclude the surveillance video from the visiting room.
In People v. Verdugo (2010) 50 Cal.4th 263 (Verdugo), our high court addressed the requirements of section 1054.1, part of the reciprocal-discovery statute. Section 1054.1 requires the prosecution to disclose to the defense various categories of evidence " ' " in the possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in the possession of the investigating agencies." ' [Citation.]" (Verdugo, at pp. 279-280.) Evidence subject to disclosure includes statements of defendants, real evidence obtained as part of the investigation of the offenses charged, written or recorded statements of witnesses, and the like. (Id. at p. 280.) " 'Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. [Citation.]' [Citation.]" (Ibid.)
If a prosecutor has not complied with section 1054.1 (and the defense has complied with informal discovery procedures), the trial court "may make any order necessary to enforce the provisions" of the statute, "including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order." (§ 1054.5, subd. (b).)
"We generally review a trial court's ruling on matters regarding discovery under an abuse of discretion standard. [Citation.] In particular, 'a trial court may, in the exercise of its discretion, "consider a wide range of sanctions" in response to the prosecution's violation of a discovery order.' [Citation.]" (People v. Ayala (2000) 23 Cal.4th 225, 299 (Ayala).)
Here, we conclude substantial evidence in the record supports the court's finding there was no discovery violation. (See People v. McCurdy (2014) 59 Cal.4th 1063, 1104 [noting the oft-cited rule that evidence is substantial if it is " ' "reasonable, credible, and of solid value" ' "].) Indeed, the record shows the prosecutor provided the court with a "discovery receipt," a photocopy picture of the original envelope the prosecution received from the prison containing the DVD's—including the videotape at issue—that were produced to the defense, and a "post-it" note from a clerk in the prosecutor's office showing this particular video was in fact turned over to the defense about a year earlier. What's more, the record shows the discovery receipt was signed by an individual from defense counsel's office.
In addition, the record shows that the defense was previously aware that this video existed, as it was referenced in one or more incident reports; that the defense made a specific request for this video footage; but that at no time did the defense follow up with the prosecutor once the defense realized it may not have received a copy of the videotape or had misplaced it.
Because discovery in the case was voluminous and multiple CDs and DVDs were turned over by the prosecutor to the defense, as found by the court, the court also found this particular video probably was "misplaced"; that the prosecutor generated this video and it "went through the chain" and was ultimately delivered to the defense; and that it was incumbent on the defense to do its "due diligence [and] follow up when something like that happens." The court thus found this video was in fact produced to the defense "and for some reason it fell through the cracks." As such, the court denied the defense's request for a mistrial and/or to exclude the video, but agreed to give the defense about a two-day continuance to review the video and prepare for its admission.
Moreover, even if the prosecutor allegedly failed to turn over the videotape to the defense, there also is substantial evidence in the record to support the finding that this purported "discovery violation" was inadvertent. As noted, there was voluminous discovery produced by the prosecutor in this case, including multiple videotapes. Although the court found the videotape had been produced and had been misplaced by the defense based on the discovery receipt and chain of custody evidence, these same facts also support the finding that the alleged failure to produce this video was not intentional.
We thus conclude under the facts of this case that the trial court did not abuse its broad discretion in electing to continue the trial for a few days, rather than to exclude the videotape altogether or to declare a mistrial. (See People v. Ledesma (2006) 39 Cal.4th 641, 683 [noting " 'whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions' "]; Ayala, supra, 23 Cal.4th at p. 282 [noting a motion for mistrial should be granted "only when ' "a party's chances of receiving a fair trial have been irreparably damaged" ' "].)
Finally, we note even without the videotape there is overwhelming evidence in the record supporting defendant's convictions on counts 5 and 6, as summarized in detail ante. (See Verdugo, supra, 50 Cal.4th at p. 280 [noting a "violation of section 1054.1 is subject to the harmless-error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836"].) For this additional reason, we conclude the court did not commit prejudicial error when it denied defendant's motion for a mistrial and refused to exclude the videotape.
Finally, we have reviewed the record in accordance with Wende and have not found any other reasonably arguable appellate issues for reversal on appeal. Thus, we are satisfied that defendant's appointed counsel has fully complied with counsel's responsibilities and that no other arguable issues exist. (See Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. IRION, J.