Opinion
C083618
02-26-2018
THE PEOPLE, Plaintiff and Respondent, v. DEQUAN ANTONIO WRIGHT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF151722)
A jury found defendant Dequan Antonio Wright guilty of forgery and second degree commercial burglary. In a bifurcated proceeding, the trial court found true an allegation that defendant had a prior strike conviction. After denying defendant's Romero motion to dismiss the prior strike conviction, the trial court sentenced defendant to an aggregate term of four years in prison.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Defendant now contends (1) the trial court should not have admitted counterfeit bills into evidence, because there were gaps in the chain of custody; (2) the trial court erred in admitting evidence of defendant's return of certain merchandise and failed to instruct on the late disclosure of that evidence; and (3) the trial court abused its discretion in denying his Romero motion.
We will affirm the judgment.
BACKGROUND
Jhonathan Campa worked in March 2015 as a guest service manager and asset protection specialist at a Target store in Davis. As part of his duties, he was responsible for identifying shoplifters and counterfeit currency. During his training at Target, Campa learned how to recognize counterfeit bills.
On March 3, 2015, defendant purchased with cash several electronic items from the Target store, including a television and a sound bar. The total amount of the items purchased was $1,540.24. After Campa assisted defendant in loading the items into his car, he was alerted that defendant might have used counterfeit bills. However, because defendant was already getting into his car and Campa had not verified that any of the bills were counterfeit, Campa did not stop defendant from leaving.
When Campa returned to the store, he reviewed the suspected counterfeit bills. In Campa's opinion, the fifteen $100 bills used by defendant appeared to be counterfeit; they looked and felt glossy and had a chemical smell "kind of like Windex." Campa took a picture of one of the bills, which had the serial No. 28375677. Pursuant to store procedure, he then placed the bills inside a Ziploc bag and wrote "AP" -- meaning asset protection -- on the bag. Campa put the Ziploc bag in the store's cash-box office so that another manager could look at the bills before they were sent to the bank.
After reviewing the surveillance footage and confirming that defendant had purchased his items with the suspected counterfeit bills, Campa called the police. When Campa arrived at work the next morning, he noticed that all of the money in the store's cash-box office had been sent to the bank.
On March 6, 2015, defendant attempted to purchase several items from the Target store in Davis using cash, including a Nikon camera, Nikon Bag, and a Nikon lens. Katherine Young, the executive team leader of asset protection, examined some of defendant's bills and informed him she would not accept his bills. According to Young, the bills were unlike normal $100 bills. The paper was waxy and glossy, almost like magazine paper; the watermark on the bills was cloudy; and at least two of the bills had the same serial number. The bills were also missing some of the shiny holographic markers that are normally in the corners of $100 bills.
Defendant told Young that another store employee had recently accepted his bills after using a counterfeit detection pen. He asked Young, "[W]hy don't you use the counterfeit detection pen like they did the other day?" Young decided not to use the counterfeit detection pen and defendant left the store without purchasing any items. At trial, Young explained that she decided not to use the counterfeit detection pen because defendant's bills had previously passed the marker test.
Target sent the fifteen $100 bills to Wells Fargo Bank, which in turn sent them to Special Agent Ryan Igig with the United States Secret Service. After examining the bills, Special Agent Igig determined all 15 were counterfeit. He said each bill had the same features. By way of example, he said the bill marked with serial No. FP57884216U was counterfeit because it had a simulated watermark that appeared to be stamped on the bill. And in the bottom right-hand corner of the bill there was what appeared to be simulated ink made with "some type of glitter pen" rather than optical variable, or color-shifting, ink. The bill was also missing microprint and had a security thread that could be seen without having to hold the bill to the light. The bill also had a smooth texture that is not present in genuine currency. In addition, the bill was made with a common type of paper that could be purchased at an office supply store, and the image of a $100 bill appeared to have been printed on top of the paper. Two bills examined by Special Agent Igig had the same serial number.
The jury found defendant guilty on two counts of second degree commercial burglary (Pen. Code, § 459) and two counts of forgery (§ 476). As to one of the forgery counts, the jury found true an allegation that the value of the counterfeit bills used by defendant exceeded $950. The jury was unable to reach unanimous verdicts on two other counts for grand theft (§ 487, subd. (a)) and attempted grand theft (§§ 664/487, subd. (a)). The trial court declared a mistrial as to those counts. In a bifurcated proceeding, the trial court found true an allegation that defendant had a prior conviction within the meaning of the "Three Strikes" law (§ 667, subds. (c), (e)(1)). After denying defendant's Romero motion to dismiss the prior strike conviction, the trial court sentenced defendant to an aggregate term of four years in prison.
Undesignated statutory references are to the Penal Code.
Additional facts are included in the discussion as relevant to the contentions on appeal.
DISCUSSION
I
Defendant contends the trial court erred in admitting the counterfeit bills because there were gaps in the chain of custody. According to defendant, there is a vital link missing in the chain of custody because there was no evidence showing what happened to the bills from the time they left the Target store in Davis to the time they showed up at the Secret Service's office. He claims there is a serious question as to whether the bills examined by Special Agent Igig were the same bills collected by Campa because, contrary to the evidence, Special Agent Igig did not find that a counterfeit detection pen had been used on any of the bills.
"While a perfect chain of custody is desirable, gaps will not result in the exclusion of the evidence, so long as the links offered connect the evidence with the case and raise no serious questions of tampering." (Méndez, Cal. Evidence (1993) § 13.05, p. 237, quoted with approval in People v. Catlin (2001) 26 Cal.4th 81, 134 (Catlin).) " 'The burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.' " (People v. Diaz (1992) 3 Cal.4th 495, 559 (Diaz); see People v. Jimenez (2008) 165 Cal.App.4th 75, 81.) "The trial court's exercise of discretion in admitting the evidence is reviewed on appeal for abuse of discretion." (Catlin, supra, 26 Cal.4th at p. 134.)
We conclude the trial court did not abuse its discretion. Although the chain of custody was not perfect, the links offered by the prosecution sufficiently connected the bills with the case such that the trial court could have been reasonably certain the bills collected by Campa were the same bills examined by Special Agent Igig. The record discloses that Campa placed the 15 suspected counterfeit $100 bills used by defendant on March 3, 2015, in a marked Ziploc bag, the bills were sent to Target's bank, the bank informed Special Agent Igig that the bills sent to him for analysis in March 2015 came from the Target store in Davis, one of the 15 bills analyzed by Special Agent Igig had the same serial number as the bill photographed by Campa, each of the bills contained the same features demonstrating they are counterfeit, and two of the bills shared the same serial number. Defendant's contention regarding the lack of evidence that a counterfeit detection pen was used on any of the bills goes to the weight of the evidence, not its admissibility. (See Diaz, supra, 3 Cal.4th at p. 559.) At trial, Special Agent Ryan Igig testified that the pen test was obsolete, and that he would "not necessarily" expect to see physical evidence that the bills had been pen tested.
II
Defendant next claims the trial court erred in admitting evidence of his return of the merchandise to a different Target store. He argues the belated production of the evidence violated section 1054 and should have been excluded under Evidence Code section 352. Defendant further contends the trial court erred in failing to instruct the jury about the late disclosure of the evidence.
A
At trial, the prosecutor's theory was that after purchasing the items from the Target store in Davis, defendant went to a Target store in the Arden area of Sacramento and unsuccessfully attempted to return the items. Chris Vaccari, an investigator from Target, testified regarding the transaction that occurred at the Target store in Arden. Based on surveillance footage, it appeared to Vaccari that there was an unsuccessful attempt by a customer to return some items.
During a break in Vaccari's testimony, the prosecutor requested permission to introduce newly discovered evidence showing that defendant had in fact returned the items to a Target store in West Sacramento. The prosecutor said he recently learned about the new evidence -- surveillance footage, a return printout and a transaction record -- from Vaccari. The prosecutor represented that he forwarded the evidence to defense counsel less than an hour after he received it, but the forwarded evidence did not include the entire surveillance video, only a screen shot from the video showing the individual making the return. The trial court said it would allow defense counsel to review the evidence to determine whether a continuance was necessary.
The following day, defense counsel advised the trial court that defendant did not want a continuance. Instead, defense counsel requested exclusion of the evidence pursuant to the discovery statutes and Evidence Code section 352. The trial court denied defendant's request to exclude the evidence as a sanction for late discovery, because (1) there was no prohibition against either side continuing their investigation, even during trial, (2) other remedies had not been exhausted, and (3) there was no evidence of willfulness. The trial court again offered a continuance as a remedy, but defense counsel once again requested exclusion of the evidence under Evidence Code section 352.
Defense counsel then read an e-mail Vaccari sent the prosecutor in connection with the new evidence. The e-mail stated, "I feel like there is much more I and we could have done better to prepare for this. This was no coordination or communication prior to the start of this trial . . . ." According to defense counsel, the e-mail showed that the prosecution did not engage in an adequate investigation. Defense counsel stated, "[I]t is one thing that you don't have evidence and it comes to light during the course of the trial. It is another thing if you've done absolutely nothing before the trial."
The trial court responded, "Your argument makes sense, but you [have] to give me some law. I need to consider that because, again, based on the research[] I've done[,] I have not found any support for exclusion before a continuance. . . . [U]nless you can show me something different, . . . your remedy is [a] continuance. I'll give you one, if you want it." Defense counsel again declined a continuance, claiming it would result in extreme prejudice to his client because defendant was in custody. Defense counsel also argued the evidence was cumulative because the prosecutor had already presented evidence that defendant attempted to return the items to the Target store at Arden.
The trial court said the new evidence strengthened the prosecution's case and the defense was learning about the evidence in the middle of trial, but it was not cumulative and it was not more prejudicial than probative under Evidence Code section 352.
The trial court also rejected defense counsel's argument that the evidence should be excluded under section 1054.1 because the prosecutor was extremely reckless in failing to discover the evidence earlier. When the court once again offered to continue the matter, defense counsel declined the offer after conferring with defendant.
B
Section 1054.1 (the reciprocal discovery statute) "independently requires the prosecution to disclose to the defense . . . certain 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.' " (People v. Zambrano (2007) 41 Cal.4th 1082, 1133, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Evidence subject to disclosure includes, among other things, "[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged. (§ 1054.1, subd. (c).) Such disclosure must "be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred. 'Good cause' is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement." (§ 1054.7.)
"Upon a showing that a party has not complied with Section 1054.1 . . . and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, 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. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (§ 1054.5, subd. (b).) "The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted." (§ 1054.5, subd. (c); see People v. Jordan (2003) 108 Cal.App.4th 349, 358 ["A trial court may enforce the discovery provisions by ordering immediate disclosure, contempt proceedings, continuance of the matter, and delaying or prohibiting a witness's testimony or the presentation of real evidence," but "the exclusion of testimony is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial"].) The trial court's discovery ruling is reviewed for abuse of discretion. (People v. Superior Court (Mitchell) (2010) 184 Cal.App.4th 451, 459; People v. Lamb (2006) 136 Cal.App.4th 575, 581.)
Here, the prosecutor disclosed the newly discovered evidence to defense counsel about an hour after he became aware of the evidence. Thereafter, the trial court made several offers to continue the proceeding so that defense counsel could adequately prepare for the evidence. Defendant declined the trial court's offers for a continuance and did not present evidence showing that the prosecutor willfully violated the reciprocal-discovery statute.
Defendant has the burden to show that the prosecutor's late disclosure was prejudicial and that a continuance would not have cured the harm. (People v. Thompson (2016) 1 Cal.5th 1043, 1103.) He fails to meet that burden. Defendant does not explain how an earlier disclosure would have affected his defense strategy, or why a continuance would not have cured the alleged harm.
Defendant's claim that the trial court should have instructed the jury on the late disclosure also lacks merit. A trial court may make any order necessary to enforce the reciprocal discovery statute. Although one remedy may be to advise the jury of an untimely disclosure (§ 1054.5, subd. (b); People v. Verdugo (2010) 50 Cal.4th 263, 280), here, the trial court properly denied defendant's request to instruct the jury with a modified version of CALCRIM No. 306 [untimely disclosure of evidence] because there was no evidence of significant prejudice from a willful violation of the discovery statute. As the trial court noted, the Bench Notes to CALCRIM No. 306 explain that the trial court should not give the instruction unless there is evidence of a prejudicial violation of the discovery statute. (See People v. Bell (2004) 118 Cal.App.4th 249, 254-257; People v. Cabral (2004) 121 Cal.App.4th 748, 752-753; People v. Saucedo (2004) 121 Cal.App.4th 937, 942-943.)
C
Defendant's section 352 argument also fails. "Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) We will reverse a trial court's exercise of discretion to admit evidence "only if 'the probative value of the [evidence] clearly is outweighed by [its] prejudicial effect.' " (People v. Carey (2007) 41 Cal.4th 109, 128.) "Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant's guilt." (People v. Crew (2003) 31 Cal.4th 822, 842.)
The trial court did not abuse its discretion. The newly discovered evidence of the return transaction at the Target in West Sacramento was highly probative of defendant's guilt, as it tended to show he purchased items from the Target store in Davis using bills he knew were counterfeit. Defendant tacitly concedes this point by acknowledging that the newly discovered evidence made the People's case substantially stronger. However, he argues the evidence should have been excluded as cumulative because the trial court already admitted evidence indicating that he attempted to return the items earlier that morning to a different Target. We disagree. The newly discovered evidence was not cumulative of evidence already presented. There was no evidence before the jury about the successful return transaction at the Target in West Sacramento. The trial court properly exercised its discretion under Evidence Code section 352.
III
Defendant contends the trial court abused its discretion in refusing to dismiss his prior strike conviction for robbery. He claims to fall outside the spirit of the Three Strikes law given the nature of the current offenses, his youth, and the fact that he had never served a prison term.
A
In making his Romero motion, defendant argued that the prior strike allegation based on his robbery conviction should be dismissed because his current convictions were nonviolent in nature, they did not involve breaking and entering into the Target, and more sophisticated individuals were with him when he committed the crimes. He further argued that he was only 19 when he committed the robbery, he was acquainted with the victim, the robbery was not sophisticated in nature, no weapon was used, and his codefendant was the person who hit the victim during the robbery. Finally, he argued the trial court should consider his willingness to accept responsibility for the consequences of his actions in this case, as evidenced by his appearance in court during the first two days of trial.
At the hearing on the motion, the trial court said it had reviewed the probation report detailing defendant's criminal background. The probation report indicated defendant had a juvenile adjudication in May 2007 and four felony convictions since March 2012. Defendant largely reiterated the arguments he made in his written motion. He also added that he was 22 years old and was attending barber school at the time of his arrest.
In opposing the motion, the prosecutor focused on defendant's criminal history. The prosecutor noted that in addition to his four felony convictions since March 2012, defendant was arrested during trial and currently had felony charges pending against him in two other counties. The prosecutor also pointed out that defendant's strike prior was not remote in time, as defendant committed the criminal acts in this case less than six months after his robbery conviction.
The trial court denied the Romero motion, reasoning that while defendant's age was a strong factor in support of granting the motion, denial of the motion was appropriate based on defendant's criminal history.
B
Section 1385 gives the trial court authority, on its own motion or upon application of the prosecution, "and in furtherance of justice," to order an action dismissed. (§ 1385, subd. (a).) In Romero, our Supreme Court held that a trial court may utilize section 1385 to strike or dismiss a prior strike for purposes of sentencing under the Three Strikes law. (Romero, supra, 13 Cal.4th at p. 504.) A trial court's ruling denying a request to dismiss a prior strike allegation "is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)
"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." ' [Citations.] 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.' " ' [Citations.] 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." (Carmony, supra, 33 Cal.4th at pp. 376-377.)
In Carmony, our Supreme Court explained: " '[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme." ' [Citation.]" (Carmony, supra, 33 Cal.4th at p. 377.) The circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be extraordinary. (Id. at p. 378.) Reversal is justified where the trial court was unaware of its discretion to dismiss a prior strike, or considered impermissible factors in declining to dismiss. (Ibid.) But where the trial court, aware of its discretion, " 'balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance' [citation]." (Ibid.)
In deciding whether to dismiss a prior strike allegation, a trial 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." (People v. Williams (1998) 17 Cal.4th 148, 161.)
We find no abuse of discretion. In ruling on defendant's motion, the trial court was aware of its discretion, considered the relevant factors, and reached its decision in conformity with the spirit of the Three Strikes law. The decision was neither irrational nor arbitrary.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
BUTZ, J.