Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F07731.
BLEASE, Acting P. J.
A jury convicted defendant Steven Williams of violating Penal Code section 4573.6, possession of marijuana in prison. Defendant argues his right to speedy trial was violated, the trial court erred in denying his Pitchess motion, and he was denied due process when the prosecutor refused to provide him with the original prison videotape recording documenting his receipt of the contraband from a visitor. Defendant’s contentions are without merit, and we shall affirm the judgment.
References to an unnamed section are to the Penal Code.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTUAL AND PROCEDURAL BACKGROUND
Around 9:00 a.m. on December 28, 2003, Correctional Officer Don Jones was surveying the visiting room at Folsom State Prison, watching defendant and his visitor, Katherine Chateau on two video monitors. Defendant was serving a 25 year-to-life term for assault with a deadly weapon, with two prior strikes. Jones saw Chateau exit from the restroom, sit next to defendant, reach into her jacket pocket, and pull out an item. With her hand clasped, she reached into a popcorn bag, then pulled her hand out. Defendant then reached into the bag and placed an item into his shirt pocket. Jones suspected the item was contraband because he knew from experience that visitors would go into the bathroom, remove contraband that had been secreted in their orifices, then pass the items on to the inmates.
Upon observing this, Jones called Officer Lois Carreon, who informed him that the recorders were not turned on. Officer Carreon turned on the recorders. Jones then made his way from the remote viewing room to the visiting room. When defendant went to the bathroom, Jones searched him and found three balloons in his shirt pocket containing marijuana.
Jones, Carreon, and Sergeant Pino Ramacher all testified as to their direct observations of defendant on the date in question. The video recording was also played for the jury. The jury found defendant guilty of possession of a controlled substance in a prison (§ 4573.6) and found the allegation that defendant had suffered a prior conviction true. The trial court sentenced defendant to the lower term of two years, which was doubled pursuant to section 667, subdivisions (b) through (i), for a total term of four years.
DISCUSSION
I
Speedy Trial
Defendant claims the trial court denied his right to a speedy trial. The information charging defendant was filed on February 3, 2005, and the jury was not empaneled in his case until November 8, 2006. However, most of the delay was attributable to defendant, and we find no violation of his right to a speedy trial. The following additional facts are relevant to this issue.
At the preliminary hearing on February 3, 2005, defendant waived his right to a trial within 60 days. Defendant subsequently filed a Marsden motion, which was denied, then a Faretta motion to represent himself, which was granted. The trial date was set for September 28. On August 12, defendant was before the court on his motion for pretrial discovery. The motion was continued, without objection by defendant, because of the unavailability of the prosecutor. At the discovery hearing, the court was informed that the prosecutor assigned to the case had to have surgery, and was going out on medical leave. The trial date was rescheduled to October 18, over defendant’s objection.
People v. Marsden (1970) 2 Cal.3d 118.
Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].
On September 27, 2005, defendant filed a motion to dismiss because of the denial of his right to a speedy trial. He argued he had been prejudiced by the delay in prosecution because the prosecution’s key witness might not recall specific events, and because his investigator had been unable to locate and interview inmate witnesses who were transferred to other prisons or paroled. The trial court heard the speedy trial motion on October 7, 2005. It found the length of the delay was not presumptively prejudicial, the prosecution had not delayed the case in bad faith, and the defendant’s allegations in support of prejudice were “conclusory[.]” As to defendant’s charge that some witnesses had been disbursed throughout the prison system, the trial court found there had been no attempt to locate the individuals, and that if they were in custody, there was a mechanism for finding them. The court denied the motion.
On October 14, defendant informed the court he could not be ready for trial by October 18, because he had just received discovery. The defendant indicated he did not want to waive his right to a speedy trial. The trial court informed him he could go to trial on the 18th or agree to an extension. Defendant agreed to an extension, and trial was reset for December 19, 2005. The court set December 9, 2005, to hear defendant’s speedy trial motion.
On December 9, 2005, the trial court informed defendant it had no motion filed with the court. The court continued the matter to December 19, and told defendant to take up the speedy trial issue with the trial judge. On December 19, the trial was trailed for one day. On December 20, the matter was trailed to December 29, 2005. On December 29, 2005, Folsom prison was on lock-down because of a tuberculosis outbreak. The trial was rescheduled for January 4, 2006.
On January 4, 2006, the trial court began hearing in limine motions. The court noted a motion to dismiss had been received from defendant, but never filed. The court filed the motion, and continued the hearing to January 6 to give the prosecutor time to respond. Also at the in limine hearing on January 4, defendant informed the court he could not foresee starting trial soon.
The second speedy trial motion, which the court set for hearing on January 6, 2006, was defendant’s motion to dismiss pursuant to section 1382. The prosecutor argued, and defendant agreed, that the motion should have been brought pursuant to section 1381 because of defendant’s status as a prison inmate.
Section 1381 applies to defendants who are serving a term of imprisonment. It provides that a defendant must be brought to trial within 90 days of delivering to the district attorney written notice stating the place of defendant’s imprisonment and his or her desire to be brought to trial.
The trial court found defendant had not made the demand required by section 1381, and that the earlier motion to dismiss did not constitute a demand. It denied the motion to dismiss. After the court also denied defendant’s discovery motions, defendant waived his rights to represent himself and asked for an attorney. The trial court asked if he understood that reappointment of counsel would result in a delay of trial. Defendant affirmed he wanted counsel to represent him. The trial court granted defendant’s motion to reappoint counsel, and the trial was continued with a time waiver to February 28, 2006.
On February 28, the matter was continued to March 14, 2006, because of courtroom unavailability. Also on February 28, defendant made a second Marsden motion. The motion was denied. Defendant made another Faretta motion, which was granted. Trial was set for March 14, 2006. It was continued to March 30 because of courtroom unavailability.
On March 30 defendant requested additional time because he was again representing himself. The trial was continued to May 17. On May 17, upon defendant’s request, the trial was continued to June 28, 2006. On June 28, defendant requested a continuance. A new trial date was set for August 23 at defendant’s request. The trial had to be continued again because defendant filed additional motions on August 22. The motions were heard on September 1, 2006. At the hearing, a new trial date was set for October 5, 2006. Defendant’s request for a longer continuance was denied.
No courtrooms were available on October 5. The trial court expressed its intention to put the trial over for two weeks. Defendant asked for more time. The trial was rescheduled for November 2, 2006. On November 2, defendant asked for another continuance. The court continued the trial to November 7, 2006. After hearing preliminary motions, the court began jury voir dire on November 8.
Defendant argues his federal and state constitutional rights to a speedy trial were violated, as well as his statutory right under section 1381. We first address defendant’s statutory right under section 1381.
Section 1381 provides that a criminal defendant who is serving a term of imprisonment may deliver to the district attorney, “written notice of the place of his or her imprisonment or commitment and his or her desire to be brought to trial or for sentencing . . . .” If the defendant is not brought to trial within 90 days of delivery of the notice, “the court in which the charge or sentencing is pending shall, on motion or suggestion of the district attorney, or of the defendant . . . or of the Department of Corrections, . . . or on its own motion, dismiss the action.” (Ibid.) However, a defendant may, in open court, request or consent to a continuance beyond the 90 day period, in which case the 90 day period begins to run anew from the date to which the trial was continued.
Defendant argues we should follow People v. Hughes (1974) 38 Cal.App.3d 670 (Hughes), rather than People v. Gutierrez (1994) 30 Cal.App.4th 105 (Gutierrez). Hughes held that a defendant’s motion in open court to dismiss for denial of his speedy trial rights fulfilled the written notice requirements of section 1381. (Hughes, supra, at p. 675.) Gutierrez held that section 1381 requires strict compliance with the notice requirements, and that a motion to dismiss did not comply with such requirements. (Gutierrez, supra, at p. 111.)
In this case, even if we accept that defendant’s motions for a speedy trial complied with the notice provisions of section 1381, his statutory rights were not violated because of his repeated requests for a continuance of trial, which restarted the running of the 90 day period.
Defendant’s first motion to dismiss was served on the district attorney by mail on September 18, 2005. Five days for mailing, plus 90 days, brought the deadline to December 23, 2005. However, on October 14, 2005, defendant agreed to an extension of time to December 19, 2005. Ninety days from December 19 moved the deadline to March 20, 2006. However, on January 9, 2006, defendant agreed to continue trial to February 28, 2006. The 90 day deadline, thus moved to May 29, 2006. On May 17, 2006, defendant requested a continuance to June 28, 2006. On June 28, 2006, defendant requested a continuance to August 23, 2006. Ninety days from August 23, 2006, would have been November 21, 2006. The jury was sworn on November 8, 2006. Because of repeated trial continuances, to which defendant consented, there was no violation of his statutory right to a speedy trial.
The constitutional right to a speedy trial is a right that can be waived. (People v. Wilson (1963) 60 Cal.2d 139, 146.) Under the federal Constitution, delay in trial that is attributable to the defendant constitutes a waiver of the right to a speedy trial. (Barker v. Wingo (1972) 407 U.S. 514, 529 [33 L.Ed.2d 101, 115].) Under the state constitutional and statutory right to speedy trial, the defendant’s consent to trial beyond the date prescribed by statute constitutes a waiver of the right. (McCullar v. Superior Court for El Dorado County (1968) 264 Cal.App.2d 1, 4-5.)
Although defendant purported to assert his right to a speedy trial several times, with one exception, he either requested or personally agreed to each continuance. The exception was to a continuance of less than one month, occasioned because the prosecutor handling his case went out on medical leave, and the case had to be transferred to another prosecutor. Notwithstanding this objection, defendant was not ready for trial on the continued date, and the trial was continued again at his request. At defendant’s request, the trial was continued seven more times. Trial of the case was trailed five times because of courtroom unavailability for a total of 46 days, but trial was continued eight times at defendant’s request, for a total of 341 days. Significantly, six of defendant’s requests to continue the trial occurred after the last time trial was continued because of courtroom unavailability. Clearly, defendant would not have been ready for trial at an earlier date even if a courtroom had been available.
We conclude defendant’s repeated requests for a continuance of the trial constituted a waiver of his speedy trial rights, regardless of his motions to assert his right to a speedy trial.
II
Pitchess Motion
On August 23, 2006, defendant filed a motion to discover records of the California Department of Corrections and Rehabilitation concerning Correctional Officer Don Jones and Correctional Sergeant, Pino Ramacher. Defendant specifically requested records regarding complaints of racial prejudice, dishonesty, fabrication of charges and/or evidence, immoral acts, or lax character. The trial court reviewed the personnel files of the officers and found, “[t]here are no records to disclose to the Defendant in this matter.”
Defendant asks us to review the sealed records of the in camera proceedings to determine whether the trial court abused its discretion by not releasing all relevant and reasonably accessible information.
In this case the employee relations officer at Folsom State Prison, Laura Eldridge, informed the court that neither officer had any incidents in their personnel file regarding the fabrication of evidence. She stated she had reviewed the files looking for any adverse action in which the charge would have been some type of dishonesty. Eldridge brought the personnel files of both officers for the trial court’s review. The court reviewed the personnel files. Eldridge confirmed that these were the only personnel files for the officers. The trial court concluded there were no records to disclose in the matter. Because there was no discussion or argument on the record of any document in the personnel files that might be relevant to the request, it is apparent from the record that there were no documents responsive to the request. Thus, there was no abuse of discretion.
III
New Trial Motion
Defendant argues the trial court erred when it refused to grant him a new trial because of the prosecutor’s failure to give him the original videotape recording. On October 7, 2005, defendant told the court that although the visiting room at Folsom State Prison was open from 8:00 a.m. to 2:30 p.m. the videotape he received only consisted of 10 minutes of the date requested. He told the court he wanted the rest of the videotape. He then said, “the only way . . . my investigator can have this tape analyzed and to find out whether it has been tampered or not if we obtained the original videotape.”
On January 4, 2006, defendant raised the issue again, and told the court he was still trying to get the original videotape. The court confirmed defendant had received a copy of the tape, but defendant argued that it was an edited version. When the court asked in what respect the tape had been edited, he responded that the tape he received was only 10 minutes long, and visiting hours lasted six hours.
On January 9, 2006, the court addressed defendant’s discovery request, stating: “I don’t see any manner in which the People have failed to comply, candidly, with either the informal request or the formal discovery order by the Court which was generated at a later time.” Specifically with reference to the videotape issue, the court found the prosecution had complied with the request for the videotape.
Defendant filed a new trial motion, arguing the prosecution denied him a fair trial, in part by suppressing the original videotape, thereby denying him the opportunity to have the tape “analyzed and evaluated for the purpose [of finding] out whether or not . . . som[e]body altered and/or tampered with the videotape scene.” The trial court denied the new trial motion.
Defendant now argues the failure to provide him with the original videotape violated his constitutional due process right to exculpatory evidence pursuant to Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215] (Brady).) Brady held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady, supra, 373 U.S. at p. 87 [p. 218].) To prevail on this claim, defendant must show both that the evidence withheld was favorable to the defendant and material. (In re Sassounian (1995) 9 Cal.4th 535, 543, 545.) Evidence is material in this case “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” (United States v. Bagley (1985) 473 U.S. 667, 682 [87 L.Ed.2d 481, 494].)
Defendant has not made any showing that the original videotape was either material or favorable.
John March testified as a video production and duplication expert for defendant. He stated that there was a break in the track approximately 36 minutes after the beginning of the tape, followed by eight seconds of black video, followed by an image of a scene from an earlier date, before the original image returned to the tape. He stated there were approximately 80 seconds of video missing from the break to the restart of the tape. March was unable to state whether the break was accidental or intentional without the original tape. He was also unable to say whether the scene from the earlier date was copied from the original tape, or was the result of the recording being made over another tape.
March never testified that he was unable to determine whether someone had altered or tampered with the tape because it was not the original, and the reason for the 80 second break in the video, which was the subject of his testimony, was neither material nor exculpatory.
Before the video camera was turned on, Jones testified he saw Chateau exit the bathroom, sit next to defendant, reach into her jacket pocket, and pull out something with her clasped hand. She then reached into a popcorn bag and pulled her hand back out. Jones then saw defendant reach into the bag and place an item into his shirt pocket. Only after observing these acts, did Jones have someone turn on the cameras.
Within the first minute after the cameras were turned on defendant made another motion toward the popcorn bag, then from the popcorn bag to his shirt pocket. He made the same motion again approximately five minutes later. By approximately nine minutes from the start of the tape, it was apparent from the videotape that defendant had items in his shirt pocket. The break in the tape occurred approximately 36 minutes into the taping. Jones testified that the break was on the original as well as the copy shown in court and given to defendant. He said the break occurred because of a break in the video source, but he did not know the cause of the break. He testified that during the 80 second break in the tape defendant was not doing anything different from what he had been doing for the last 20 minutes. After the break, the videotape showed defendant being handcuffed.
The incriminating actions caught on tape were defendant’s transfer of objects from the popcorn bag to his shirt pocket, as well as the appearance of objects visible in defendant’s shirt pocket after the transfers. The break in the videotape happened after these occurred. Defendant does not explain how anything that occurred during the break would have been favorable to his defense, or would have resulted in a different verdict. Defendant made no claim that the relevant portions of the video were fabricated, nor did his expert give any testimony that he was unable to discern whether the videotape was fabricated because he did not have the original. Thus, defendant has made an insufficient showing that the original videotape would have been favorable to his defense, or that there is a reasonable probability the result would have been different had the original been provided to him. Defendant’s showing is therefore insufficient to justify reversal.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., RAYE, J.