From Casetext: Smarter Legal Research

People v. Zepeda

California Court of Appeals, Second District, Sixth Division
Apr 22, 2009
2d Crim B203248 (Cal. Ct. App. Apr. 22, 2009)

Opinion

NOT TO BE PUBLISHED

Superior Court County No. GA067184 of Los Angeles

Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.


PERREN, J.

German Edgardo Zepeda appeals the judgment following his conviction for second degree vehicle burglary (Pen. Code, § 459), and misdemeanor possession of burglary tools (§ 466). Zepeda contends the trial court erred in denying his Pitchess motion, a motion to dismiss a juror for misconduct, and a Romero motion to dismiss his prior strike conviction for sentencing purposes.

All statutory references are to the Penal Code unless otherwise stated.

(Pitchess v. Superior Court (1974) 11 Cal.3d 531.)

(People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)

FACTS AND PROCEDURAL HISTORY

In September 2006, police officer Jason Lucas was patrolling an area that had experienced extensive auto burglaries. At 2:30 a.m., Officer Lucas saw Zepeda and another man walking on the sidewalk. Zepeda was carrying a heavy backpack. A car was slowly following the two men.

Nearby, a parked car's alarm sounded and Officer Lucas saw that its front passenger window was smashed. As Lucas drove past the car, Zepeda and the other man looked back at the car and at each other. Lucas made a U-turn, and saw the men running around a corner. Zepeda, who no longer had his backpack, ran through the parking lot of a hamburger stand. Lucas followed and found Zepeda standing near a trash dumpster. When Lucas found a pair of pliers and a flat head screwdriver in the hat Zepeda had been wearing, Lucas arrested him. During booking, Zepeda identified himself with a false name and date of birth.

After he was booked, Lucas found Zepeda's backpack in the bushes behind the dumpster. A slide hammer used to tamper with car ignitions was inside the backpack.

Zepeda was charged with vehicle burglary and possession of burglar's tools. It was alleged that he had suffered a prior conviction for a serious and violent felony (§§ 667, subds. (b)-(i), 1170.2, subds. (a)-(d)), and had served a prison term (§ 667.5, subd. (b)).

After a jury convicted Zepeda of the charged offenses, he admitted the prior conviction and prison term. He was sentenced to prison for the three-year upper term for the burglary, doubled as a second strike under the Three Strikes law, and received a concurrent 180 day sentence in county jail for possession of burglar's tools. The trial court struck the prior prison term enhancement.

DISCUSSION

No Error in Ruling on Pitchess Motion

Zepeda contends the court erred in denying a portion of his Pitchess motion for an in camera review of the personnel records of Officer Lucas. We disagree.

A defendant is entitled to discovery of a police officer's confidential personnel records relevant to his or her defense. (Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 537-538; Evid. Code, §§ 1043-1045.) The procedure requires a showing of good cause for the discovery, an in camera review of the records if good cause is shown, and disclosure of information "relevant to the subject matter involved in the pending litigation." (Evid. Code, § 1045, subd. (a).) To establish good cause, the defendant must show that the personnel records are material to his or her defense, and state a reasonable belief that the records contain the type of information sought. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016.) The threshold for good cause is low, and a defendant need only "'establish a plausible factual foundation'" for his or her defense by presenting "a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents." (Id. at p. 1025.) It is sufficient if the factual scenario "might or could have occurred" and "is both internally consistent and supports the defense...." (Id. at p. 1026.)

Zepeda's motion sought discovery of numerous documents, including complaints against Officer Lucas concerning false police reports. Defense counsel's supporting declaration notes that Lucas claimed that Zepeda was walking on the sidewalk carrying a backpack, ran away when Lucas attempted to detain him, and was found behind a dumpster near where the backpack was found. The declaration states that Zepeda "refutes each and every one of these claims. Mr. Zepeda was never walking in the street, nor did he ever have a backpack. Mr. Zepeda did not learn of the reason for his arrest until after having been arrested" and booked.

At trial, a defense witness testified that, after he and Zepeda drove two friends to a bus stop, Zepeda needed to urinate. The witness stopped their car, and Zepeda ran behind the hamburger stand to use its restroom. When he saw a police car, the witness drove away and later learned that Zepeda had been arrested.

The trial court questioned whether the declaration established good cause for the discovery of any documents in Officer Lucas's personnel file, but concluded that the showing was sufficient to conduct an in camera review limited to documents concerning false police reports. After such an in camera review, the trial court ruled that there were no discoverable documents.

In addition to documents concerning false police reports, Zepeda's Pitchess motion sought complaints against Lucas concerning racial and ethnic bias, coercive conduct, violation of constitutional rights, fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion or probable cause, illegal searches and seizures, false arrest, perjury, dishonesty, planting evidence, and other evidence of misconduct showing moral turpitude. The trial court declined to conduct an in camera review of these documents. Zepeda contends that this ruling was error and that the court should have conducted an in camera review of documents concerning the fabrication and planting of evidence. We disagree.

The motion was based solely on Zepeda's denial of walking on the street, running from a police officer, and carrying a backpack. As the trial court stated, these denials showed that "at best there may be a dispute as to whether Mr. Zepeda was ever in the street or ever had a backpack," but did not show good cause for discovery of documents concerning the fabrication or planting of evidence. A bare denial of facts set forth in a police report may be sufficient good cause. (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1024-1025.) But, counsel's declaration did not present facts that showed any alternate explanation of the incident. In essence, Zepeda simply asserted that Officer Lucas framed a person for no apparent reason, and that the entire incident was fabricated.

We conclude that the trial court acted reasonably in finding that the wide range of police misconduct set forth in Zepeda's Pitchess motion was both unsupported by a showing of good cause, and irrelevant to the proposed defense in the case. The court did not abuse its discretion in narrowing disclosure because the categories of information sought were not tethered to a specific factual scenario linking Officer Lucas to a particular type or types of misconduct. (See Warrick v. Superior Court, supra, 35 Cal.4th at p. 1022.)

Moreover, documents showing that Officer Lucas had filed or had been accused of filing false police reports would also reveal accusations of fabricating or planting evidence. There is nothing in the motion or the record generally to suggest that specifically including fabrication or planting of evidence in the in camera review would have resulted in disclosure of any relevant information.

In addition, as requested by Zepeda, we have independently reviewed the sealed transcript of the in camera hearing concerning false police reports, and conclude that the trial court did not abuse its discretion in ruling that no discoverable documents existed. (People v. Mooc (2001) 26 Cal.4th 1216, 1232.) We note that, despite the trial court's narrow order, the court conducted a full review of all documents in the file, and nothing fit any category of document requested in Zepeda's motion.

Misconduct Did Not Require Removal of Juror

Zepeda contends that a conversation during trial between a juror and Officer Lucas constituted jury misconduct, and violated his right to an impartial jury. Zepeda argues that the conversation resulted in actual bias on the part of the juror. We disagree.

Every defendant has a constitutional right to a trial by unbiased, impartial jurors. (People v. Nesler (1997) 16 Cal.4th 561, 578.) Juror misconduct, such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias. (Id. at pp. 578-579.) The presumption is rebutted by a showing that no "substantial likelihood" exists of "inherent" or "actual" juror bias. (Ibid.)

Inherent bias exists when the juror receives extraneous material that "objectively, is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror." (People v. Nesler, supra, 16 Cal.4that pp. 578-579.) Actual bias exists when the juror becomes "unable to put aside her impressions or opinions based upon the extrajudicial information she received and to render a verdict based solely upon the evidence received at trial." (Id. at pp. 582-583.) In determining whether bias exists, we consider the entire record, including the nature of the misconduct and the surrounding circumstances. (Ibid.) We accept trial court credibility determinations and findings on questions of fact supported by substantial evidence, but independently determine whether prejudice arose from the juror misconduct. (Id. at p. 582; People v. Ault (2004) 33 Cal.4th 1250, 1263.)

Here, after Officer Lucas had completed his testimony but before presentation of defense evidence, Juror No. 1 walked up to Lucas in the courthouse hallway and engaged Lucas in conversation. The trial court conducted an inquiry by calling the juror into the courtroom outside the presence of the other jurors. Juror No. 1 acknowledged his conversation with Lucas. When reminded of the court's admonition not to talk to anybody connected with the case, Juror No. 1 responded that he thought the admonition was limited to conversations about the case, and that he and Officer Lucas had not discussed the case. Juror No. 1 stated that the conversation concerned his attendance at a program at a police academy, and that the two men also talked about sports. The conversation lasted five or ten minutes. No other juror participated in the conversation but some were close enough to overhear what was said.

The trial court had orally instructed the jury: "Please don't discuss the case; don't form or express any opinions about it; don't conduct any deliberations. Please don't speak to anybody connected with this case...."

The court asked Juror No. 1: "based on your conversation with Officer Lucas, do you have a state of mind where you could be totally fair and impartial for both sides?" Juror No. 1 stated, "[o]h, sure. We didn't discuss anything about the case." In response to repeated questioning from the court, Juror No. 1 also stated that he could fairly and impartially judge the credibility of Lucas, disregard the entire conversation, and had not formed an opinion regarding guilt because he had not heard all the testimony or argument by counsel. Juror No. 1 responded similarly to questions posed by defense counsel.

Defense counsel moved to excuse Juror No. 1. Counsel argued that, although the conversation did not concern the case, a "connection" between Juror No. 1 and Officer Lucas had been established by their conversation. The trial court denied the motion to remove Juror No. 1. The court concluded that Juror No. 1 acted in the good faith belief that he could speak with witnesses during trial as long as the case was not discussed. The court also concluded that the assertions of impartiality by Juror No. 1 were credible and that Juror No. 1 could be "fair and impartial."

Zepeda argues that the record shows that the conversation resulted in the creation of actual bias on the part of Juror No. 1. We disagree. The factual findings of the trial court were supported by substantial evidence, and we independently determine that the conversation resulted in no prejudice. The trial court correctly decided that the reported contact between Juror No. 1 and Officer Lucas warranted further investigation, and promptly convened a hearing and questioned the juror. The court thoroughly questioned Juror No. 1 who steadfastly asserted that he could be fair and impartial and that the entire conversation occurred only because he misunderstood the court's admonitions. The juror's stated interpretation of the court's admonition was reasonable. Also, Zepeda did not present any information to suggest Juror No. 1 was untruthful or withheld information.

We acknowledge that Officer Lucas was a key witness and his credibility was critical to the prosecution's case. But, given the fact that the conversation did not relate to the case, it is reasonable to conclude that it had a minimal impact on Juror No. 1 and resulted in no actual prejudice to Zepeda.

No Error in Denial of Romero Motion

Zepeda contends that the trial court abused its discretion in refusing to dismiss his prior strike offense for purposes of sentencing. We disagree.

A trial court has limited discretion under section 1385 to strike prior convictions in Three Strikes cases. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.) In determining whether to exercise that discretion, 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." (People v. Williams (1998) 17 Cal.4th 148, 161.) We review the denial of a section 1385 motion under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.) There was no abuse of discretion in this case.

As the trial court emphasized, Zepeda's current burglary offense was relatively serious, and his prior robbery conviction occurred only four years earlier. Also, Zepeda was initially granted probation for the robbery but violated probation in an incident involving another vehicle break-in. In addition, the court found that Zepeda had limited prospects for a crime-free future.

These factors were sufficient for the trial court to conclude that Zepeda fell squarely within the spirit and purpose of the Three Strikes law. The Three Strikes law presumes that a repeat offender with serious or violent prior offenses should be subject to greater punishment. (People v. Carmony, supra, 33 Cal.4th at pp. 378-379.) Striking a prior serious felony conviction is an extraordinary exercise of discretion, reserved for extraordinary circumstances. (People v. Strong (2001) 87 Cal.App.4th 328, 332.)

We also disagree with Zepeda's assertion that the trial court denied his motion solely on the basis of the current offense, ignoring his background, character, and prospects. The court did not expressly discuss these factors, but is presumed to have considered all relevant factors in the absence of an affirmative record to the contrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978; People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) Furthermore, the court's focus on the current and prior offenses was reasonable in light of Zepeda's probation failure, the proximity in time of his prior strike conviction, and his arguments during the hearing on the motion.

The judgment is affirmed.

We concur: YEGAN, Acting P.J., COFFEE, J., Teri Schwartz, Judge


Summaries of

People v. Zepeda

California Court of Appeals, Second District, Sixth Division
Apr 22, 2009
2d Crim B203248 (Cal. Ct. App. Apr. 22, 2009)
Case details for

People v. Zepeda

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GERMAN EDGARDO ZEPEDA, Defendant…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Apr 22, 2009

Citations

2d Crim B203248 (Cal. Ct. App. Apr. 22, 2009)