Opinion
F076086
09-13-2019
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY COCKRELL, Defendant and Appellant.
Jacquelyn Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Clara M. Levers and Julie A. Hokans, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SF018317A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Judith K. Dulcich, Judge. Jacquelyn Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Clara M. Levers and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Jeffrey Cockrell called the sheriff's department for assistance about a child custody issue. He argued with the responding deputy and hit the deputy in the back with a full can of soda. He was charged and convicted of two misdemeanors: resisting an executive officer in the performance of his duty (Pen. Code, § 69), and battery against a peace officer (§ 243, subd. (b)). He was placed on probation.
All further statutory citations are to the Penal Code unless otherwise indicated.
On the first day of his trial on the misdemeanor charges, defendant did not appear and his defense counsel waived his presence under section 977. On appeal, defendant contends the court improperly accepted defense counsel's waiver for both his jury trial and the sentencing hearing without obtaining a knowing and voluntary waiver.
Defendant also contends the court should have granted his motions to dismiss the case pursuant to California v. Trombetta (1984) 467 U.S. 479 (Trombetta) based on the deputy's failure to collect the soda can that was thrown at him. Defendant asserts the can was potentially exculpatory since the deputy's back was turned when the can hit him and the defense could have tested it for fingerprints or DNA to support his trial defense that someone else threw it.
Finally, defendant requests this court to review the deputy's confidential personnel records to determine whether the trial court properly denied his motion for discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We will order correction of the minute order on one of the terms and conditions of probation and otherwise affirm.
FACTS
Deputy Eric Vollmer of the Kern County Sheriff's Department was the only witness in this case, and testified about what happened when he responded to a dispatch at an apartment complex in Buttonwillow around 4:40 p.m. on August 22, 2015. Defendant had placed a call for assistance to "keep the peace" in a child custody dispute.
Deputy Vollmer arrived in the apartment complex's parking lot. Defendant was sitting in the driver's seat of an older model Honda that was parked in the lot. The Honda had been backed into a space against a wall. Vollmer did not see anyone else in the area.
Deputy Vollmer approached the vehicle and asked the defendant what was going on. Defendant got out of the driver's seat and pointed to the front of his car, and asked Vollmer if he saw a dent in the front of the car. Vollmer testified the Honda was "oxidized [and] kind of beat up in a sense," and told defendant he could not see a dent.
Defendant again pointed to the front of the car and asked Vollmer, "[Y]ou don't see that fucking dent?" Vollmer again said no. Defendant wiped dirt from the car, and Vollmer saw a nick that was about "the size of an eraser head of a pencil" in the front of the car, but "there was a lot of body damage to the car in general."
Deputy Vollmer advised defendant he had been dispatched to keep the peace, and asked whether he was there for that purpose or the dent. Defendant said he had gone to the apartment to exchange his child with his "significant other," they got into an argument, and she damaged his car.
Deputy Vollmer was familiar with defendant and the other party because they had previously called for assistance in similar situations. Vollmer asked defendant why they could not handle the situation like adults and instead repeatedly called law enforcement. Defendant replied, "I am an adult you mother fucker."
Deputy Vollmer told defendant that if he was going to continue to yell and curse, Vollmer would request assistance from his sergeant. The defendant told Vollmer to "go ahead and leave then mother fucker."
Deputy Vollmer testified that during the entirety of their exchange, defendant stood next to the open driver's door of the Honda. The front of defendant's car was facing Vollmer and the Honda's rear end was backed in and parked against a wall.
Deputy Vollmer turned his back to defendant and walked away from the Honda. As he headed to his patrol car, Vollmer "felt something heavy hit me in the back of my leg. I heard a pop if you want to call it that and then felt a liquid saturation across the back of my arms, my neck, my head."
DeputyVollmer immediately turned around and realized he had been hit by a soda can. "[Y]ou could hear the hissing of a soda can—a Pepsi soda can with the contents spraying out and I saw the can laying there on the ground." The soda can hit his left leg "[f]airly hard ... hard enough to bounce off my leg and hit the ground and explode." The can "felt full. When I turned around and looked, I noticed that the pop top on it hadn't been opened yet and it was spraying out from the side."
"Q So you felt the can hit you. About how far away were you from [defendant] when that had happened?
"[Vollmer] Maybe five feet. The distance between the rear bumper of a car and the front bumper of a car.
"Q So where was [defendant] standing when you turned around to look?
"A Towards the rear of the car.
"Q And where were you standing?
"A At the front.
"Q And where were you heading towards?
"A Towards my patrol vehicle.
"Q Okay. And was there any other person that you could see around?
"A No."
Deputy Vollmer testified the can was a "tall" 20-ounce soda that was larger than the average size. Vollmer did not see defendant holding the can prior to being hit by it but believed defendant threw it at him. When Vollmer turned his back, defendant was standing behind the open driver's door of the car and Vollmer could not see his hands. There were two or three other cars in the parking lot at the time, and Vollmer never saw anyone in the cars or around the area during the entirety of his interaction with defendant.
"[I]t was only him and I there in the parking lot and I don't know a human capable of being able to throw a Pepsi can and cover a ground of approximately 40 yards to be out of my view of vision and I believe in about a one second time frame."
Deputy Vollmer took defendant into custody. Another deputy arrived and took photographs of the soda can on the pavement and the stains on Vollmer's uniform.
Deputy Vollmer testified he left the soda can at the scene and did not seize it as evidence because there was liquid inside it and all over the exterior of the can. "We don't book liquids, especially sodas, because of the sugar. We're not allowed to book inside our property room because of the ants and insects that will attract [to] the can." Vollmer further explained that "[a]nyone familiar with DNA and fingerprints would know that a saturated can with liquid on it would be unable to track DNA or fingerprints from it."
DISCUSSION
I. The court correctly conducted defendant's trial and sentencing hearing in his absence
Immediately prior to defendant's jury trial, defense counsel waived defendant's presence pursuant to section 977, and subsequently waived his presence at the sentencing hearing. On appeal, defendant contends the court violated his due process rights because it improperly accepted counsel's waiver of his presence at both the misdemeanor trial and the sentencing hearing in the absence of his personal appearance, and without obtaining his knowing and voluntary waiver of his constitutional right to appear.
A. Sections 977 and 1043
We begin with a defendant's constitutional and statutory rights to be present, and his or her corresponding ability to waive presence, at trial and the sentencing hearing.
"A criminal defendant's right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment. It is also required by section 15 of article I of the California Constitution and by sections 977 and 1043." (People v. Concepcion (2008) 45 Cal.4th 77, 81.) The defendant has a constitutional and statutory right to be present at sentencing. (People v. Simms (2018) 23 Cal.App.5th 987, 996; People v. Fedalizo (2016) 246 Cal.App.4th 98, 110.)
"As a matter of both federal and state constitutional law, ..., a defendant may validly waive his or her right to be present during a critical stage of the trial, provided the waiver is knowing, intelligent, and voluntary." (People v. Cunningham (2015) 61 Cal.4th 609, 633.) "'While that basic and fundamental right to appear and defend flows from the Constitution, there is no reciprocal constitutional authority to be absent. The right of absence ... is derived from the Legislature.'" (People v. Safety National Causalty Corp. (2016) 62 Cal.4th 703, 713.)
A defendant may waive his or her right to be present under sections 977 and 1043, and that waiver may be express or implied through the representations of counsel in misdemeanor cases. (People v. Concepcion, supra, 45 Cal.4th at p. 82.)
The requirements for waiver depend on whether the defendant is being tried on felony or misdemeanor charges. "Our statutory scheme recognizes the inherent differences in real-world consequences between felony and misdemeanor cases. The scheme balances efficiency and the need for a defendant's participation in proceedings with concerns of convenience and consideration of penalty." (Bracher v. Superior Court (2012) 205 Cal.App.4th 1445, 1458.)
"Section 977, subdivision (b) applies to felony cases and significantly curtails a defendant's ability to appear solely through counsel. In felony cases, 'the court may specifically direct the defendant to be personally present at any particular proceeding or portion thereof.' [Citation.] The statute sets forth a sample form for a written waiver in felony cases and specifies that the waiver used by the court must be in substantially the same form. [Citation.] Further, the statute requires the defendant's personal appearance at various proceedings. It provides in pertinent part: 'In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present, as provided by paragraph (2).'" (Bracher v. Superior Court, supra, 205 Cal.App.4th at p. 1449; accord, People v. Safety National Casualty Corp., supra, 62 Cal.4th at pp. 713-714.)
There are different requirements for waiver in a misdemeanor case. "[A] defendant in a misdemeanor proceeding has a statutory right to be absent." (People v. American Bankers Ins. Co. (1987) 191 Cal.App.3d 742, 746.) Section 1043, subdivision (e) states:
"If the defendant in a misdemeanor case fails to appear in person at the time set for trial ..., the court shall proceed with the trial, unless good cause for a continuance exists, if the defendant has authorized his counsel to proceed in his absence pursuant to subdivision (a) of Section 977."
Section 977, subdivision (a)(1) states that, with exceptions not applicable to this case, "[i]n all cases in which the accused is charged with a misdemeanor only, he or she may appear by counsel only ...."
"In construing the statutory right of an accused to be absent from misdemeanor proceedings, case law has recognized that the right is conditional: a defendant who absents himself must do so with full knowledge of the pendency of the criminal proceedings, as the waiver of the right to be present must be a knowing and intelligent one. [Citation.] Further, the court must be certain that the acts of counsel are authorized by the defendant. [Citation.] However, the court can rely upon the representation of counsel that the accused is knowingly absent from the proceedings. [Citation.] In the absence of a statutory requirement that the attorney's authority be evidenced by a writing, it is always presumed that an attorney appearing and acting for a party has authority to do so. [Citation.] This confidence rests not only upon a belief in the honor and
integrity of the attorney, but upon the fact that the attorney is a sworn officer of the court. [Citation.]
"Neither section 977, subdivision (a) nor section 1043, subdivision (e) requires the attorney's authorization to be in writing. Thus, without a strong factual showing to the contrary [citation], the attorney's representation that he or she is authorized to proceed in the defendant's absence is sufficient." (People v. American Bankers Ins. Co., supra, 191 Cal.App.3d at pp. 746-747, fn. omitted; accord, People v. International Fidelity Ins. Co. (2012) 212 Cal.App.4th 1556, 1562.)
Defense counsel's authority to waive defendant's presence in misdemeanor cases extends to the sentencing proceedings. (Olney v. Municipal Court (1982) 133 Cal.App.3d 455, 461-462.) "In misdemeanor cases, the possible fine or penalty is often small and the burden of appearance at a distant courthouse can exceed it." (Bracher v. Superior Court, supra, 205 Cal.App.4th at p. 1458.)
With this background in mind, we turn to the procedural history of this case that culminated in defense counsel's waiver of defendant's presence.
B. Initial procedural history
On August 28, 2015, the complaint was filed that charged defendant with felony battery of a peace officer (§ 243, subd. (c)(2)) and felony resisting an officer by the use of force or violence (§ 69) with one prior strike conviction. The court appointed the public defender's office to represent defendant.
After the preliminary hearing, the information was filed and charged defendant with the same felony offenses and the prior strike conviction. Defendant pleaded not guilty and denied the allegations.
Dismissal of felony count
On October 26, 2015, the court set aside the felony battery charge based on defendant's argument that there was insufficient evidence Deputy Volmer was injured when the can hit him.
Discharge of defense attorneys
On January 26, 2016, the court granted the deputy public defender's request to be relieved because of a conflict. On February 1, 2016, the court granted the request from defendant's newly appointed attorney to be relieved because of scheduling issues.
On March 29, 2016, defendant appeared with a new attorney and the court granted his request for a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118. After the in camera hearing, the court relieved counsel and appointed Scott Winkler. Thereafter, the court granted Mr. Winkler's requests for several continuances and defendant waived time.
On November 2, 2016, defendant, who had been released on bail, failed to appear for a pretrial hearing and the court issued a bench warrant for his arrest. Defendant apparently resolved the matter and was again released on bail. Defendant remained released on bail for the entirety of the proceedings. He appeared at all subsequent hearings, except as we will explain below.
C. Defendant's first jury trial
On November 7, 2016, defendant appeared with counsel for his trial. The court granted the district attorney's motion to file an amended information that alleged two felonies with a prior strike conviction, and one misdemeanor. On the same day, defendant's first trial began with jury selection.
On November 8, 2016, the court convened outside the jury's presence. Mr. Winkler, defense counsel, advised the court that he had just encountered defendant in the lobby. Defendant was on the phone and making derogatory remarks about his attorney, and some members of the jury may have been present. Counsel moved to withdraw as attorney of record. The court cleared the courtroom and conducted an in camera hearing.
After the in camera hearing, the court advised the prosecutor that it was going to grant Mr. Winkler's motion to withdraw. The prosecutor objected and asserted defendant was "doing everything he can to avoid going forward on his cases" by creating conflicts with his attorneys. The court overruled the prosecutor's objection, relieved counsel, declared a mistrial, and discharged the jury.
On November 17, 2016, the court appointed Roger Lampkin to represent defendant. Mr. Lampkin was defendant's attorney through trial and sentencing.
On January 23, 2017, the court convened a pretrial hearing. Defendant was present with Mr. Lampkin. The court granted the district attorney's motion to amend the information to allege that count 2 was a misdemeanor violation of section 69, and not a felony as previously charged. Defendant's trial was set for January 25, 2017. He remained released on bail.
On February 3, 2017, the court granted defense counsel's request for a continuance and defendant waived time. The court set the pretrial hearing for March 10, 2017, and defendant was ordered to appear.
D. Defense counsel waives defendant's pretrial presence
On March 10, 2017, the court convened the pretrial hearing on the pending charges of one felony and two misdemeanors. Defendant was not present. Mr. Lampkin waived defendant's personal appearance and the People did not object. Mr. Lampkin also waived time for trial on defendant's behalf. The court set the jury trial for June 5, 2017.
On June 5, 12, 15, 20, 26, and 27, 2017, the court convened pretrial hearings and defendant was not present. Mr. Lampkin waived defendant's personal presence and the People did not object. The court continued the matter and trial was ultimately set for June 28, 2017.
E. Defense counsel's waiver of defendant's presence at trial
On June 28, 2017, Judge Gill called the matter for trial. Defendant was not present. Mr. Lampkin said he was waiving defendant's personal presence. Judge Gill assigned the case to Judge Dulcich for trial.
Thereafter, Judge Dulcich called the matter for trial, and asked defense counsel if he was going to appear for defendant for the entire trial under section 977. Counsel said yes.
The prosecutor objected to any reliance on section 977 to waive defendant's presence for the entirety of the trial:
"[W]hile I understand that an attorney has the ability to appear [under section] 977 for their client and that client may waive certain statutory rights to effect that regard, the potential issue here is that we're setting this up sort of for a mistrial in the fact that we don't have any official waiver of rights [from defendant.]"
The prosecutor argued defendant could "simply have this entire thing thrown out by ... saying I never authorized my attorney to do that and everything we do here would thereby fall so I'm not questioning whether or not that authority has been given but I am saying that it does make a very scary proposition for the appeal of any decision that is made and the ease with which it could be overturned is something that I believe should give pause."
The prosecutor was also concerned because defense counsel had previously refused to stipulate to defendant's identity as the person who Deputy Vollmer encountered in the parking lot, and "without having ... defendant present [that] is sort of an interesting question as to how we might prove that identity though I am certain the People will figure out a way to do it ...."
The court replied that there was no requirement for a written waiver of presence under section 977. The court asked defense counsel "as an officer of the Court" whether he had authority from defendant to waive his presence for the entire trial under section 977. Defense counsel said yes: "I talked to him numerous times about it."
As for identity, the court said defendant either had to appear for Deputy Vollmer to identify him or defense counsel had to stipulate that he was the person who Vollmer encountered. Defense counsel replied:
"Judge, it's been a dozen times that I've appeared [under section] 977. The People had the ability at any time to ask the Court to order him to be here in person at any time and especially during the trial. I've been appearing [under section] 977 on the trial call several times. If they had done that, they could have subpoenaed him. I don't know what authority they would have—I don't know what capacity they would bring him in as. He is not intending to testify. He would not be subpoenaed as a witness. If he's coming in in some sort of exhibit to be identified, I don't know what the authority is for that."
The court asked defense counsel whether he would stipulate to defendant's identity if the People produced a photograph because "[o]therwise I can revoke the [section] 977 and make [defendant] or order [defendant] to appear [or] if he doesn't, issue a warrant." Defense counsel said he would stipulate "that's my client."
The prosecutor presented a photograph of defendant that was marked as an exhibit. The court asked defense counsel to look at it before the court overruled the People's objection to his motion under section 977. Defense counsel said:
"I don't think it's relevant but [defendant] has had an operation scheduled and rescheduled several times. I'm not really sure what his situation is right now as far as his ability to be here."
The court asked defense counsel if he would stipulate the photograph showed defendant. Counsel said yes. The court admitted the photograph into evidence and accepted counsel's waiver under section 977.
F. Filing of amended misdemeanor complaint
Also on June 28, 2017, immediately after addressing the section 977 issue, the court stated the People had presented an "amended complaint." The prosecutor explained the complaint omitted the previously alleged felony and the strike allegation, and only charged defendant with two misdemeanors: count 2, resisting an executive officer in the performance of his duty (§ 69); and count 3, battery against a peace officer (§ 243, subd. (b)).
The court accepted the amended complaint for filing. Defense counsel did not object or express surprise about the misdemeanor charges. The court granted the prosecutor's motion to dismiss an unrelated misdemeanor that was trailing in another case. Thereafter, the court proceeded with jury selection.
G. Defendant's jury trial and convictions
On June 29, 2017, defendant did not appear and Mr. Lampkin again waived his personal presence. Defendant's jury trial on the two misdemeanor charges began with opening statements, and Deputy Vollmer testified as the only witness.
When Deputy Vollmer testified, the prosecutor showed him defendant's photograph that had been marked as an exhibit. Vollmer identified defendant as the reporting party that he met in the parking lot, and the only person he saw that day. The court advised the jury that both attorneys had previously agreed to stipulate the exhibit was a photograph of defendant, and the attorneys again stipulated.
Defense counsel did not present any evidence and defendant did not appear to testify.
During the instructional conference, the court advised the attorneys that it was going to instruct the jury not to consider defendant's absence from the trial. The attorneys agreed. Thereafter, the court instructed the jury: "The fact that ... defendant is not present at trial is not evidence. Do not speculate about the reason. You must completely disregard this circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations."
H. Defense counsel waives defendant's presence at sentencing Later on June 29, 2017, the jury found defendant guilty of the two charged misdemeanors. The court excused the jury.
Immediately after the verdicts, the court asked defense counsel if he wanted to proceed with the sentencing hearing.
"THE COURT: [D]id you want to proceed with sentencing on [defendant's] behalf under [section] 977 or do you want me to order him to appear. I don't have to.
"[DEFENSE COUNSEL]: The Court can proceed.
"THE COURT: All right.
"[DEFENSE COUNSEL]: [Section] 977."
Defense counsel waived time and requested immediate sentencing. The court placed defendant on informal court probation for three years subject to certain terms and conditions, including serving 90 days in custody for count 2 with credit for time served. The court ordered defendant to return the signed terms and conditions of probation by July 6, 2017. The court gave the printed terms and conditions to defense counsel and ordered him to give them to defendant. The court exonerated the bail bond and ordered defendant to turn himself in by July 14, 2017.
In contrast to the reporter's transcript, the minute order states the court ordered defendant to serve 60 days in custody. "If 'an irreconcilable conflict exists between the transcripts of the court reporter and the court clerk, the modern rule is not automatic deference to the reporter's transcript, but rather adoption of the transcript due more credence under all the surrounding circumstances.'" (In re Malik J. (2015) 240 Cal.App.4th 896, 905.) Here, the court clearly stated the term was 90 days. We thus order correction of the June 29, 2017, minute order to state that the court ordered defendant to serve 90 days in custody with credit for time served as a condition of probation.
I. Discharge of trial counsel and postjudgment hearings
On July 11, 2017, the court held a postjudgment hearing and defendant appeared with Mr. Lampkin, who had represented him at trial and the sentencing hearing. Mr. Lampkin advised the court there was a conflict and requested to be relieved. The court granted the motion and appointed new counsel, defendant remained out of custody, and the matter was continued. There is no evidence that defendant complained that Mr. Lampkin had improperly waived his presence, or that the trial and sentencing hearing had been held in his absence.
Thereafter, defendant, represented by his new attorney, filed a motion for bail or release on his own recognizance pending appeal. The court vacated defendant's reporting date and set a hearing on the motion.
On August 2, 2017, Judge Dulcich heard defendant's motion for bail. Defendant was present with his new attorney. There is no evidence that defendant or his attorney objected to the trial or the sentencing hearing being held in his absence, or stated his previous attorney, Mr. Lampkin, improperly waived his presence.
The court granted defendant's motion to be released on his own recognizance. The court vacated the commitment reporting date and stayed the jail term pending appeal.
J. Analysis
Defendant asserts his attorney lacked authority to waive his presence on June 28 and 29, 2017, for the jury trial and the sentencing hearing held immediately thereafter, and the court never obtained his knowing and voluntary waiver of right to appear.
We first note that when defendant's trial was convened on June 28, 2017, the pending charges were one felony and two misdemeanors. Defense counsel stated he was waiving defendant's presence under section 977 and that he had authority to do so in defendant's absence. As set forth above, the requirements to waive a defendant's presence at a trial on felony charges are different from those required for misdemeanor charges. However, the entirety of the record strongly suggests that all the parties were aware that defendant's trial was only going forward on misdemeanor charges. Immediately after the court granted defense counsel's motion under section 977, it addressed the prosecution's amended complaint that had been presented to the court when it convened that day. The court stated the amended complaint only alleged two misdemeanors and the People had dismissed the remaining felony charge. Defense counsel did not object or claim to be surprised that the trial was going forward on two misdemeanors. We can thus infer that defense counsel entered his waiver under section 977 based on his understanding that defendant was only going to be tried for misdemeanor offenses.
As for defense counsel's waiver, the court carefully addressed counsel's authority and the prosecutor's objections, and agreed counsel could waive defendant's presence. It declined to grant defense counsel's motion until counsel addressed his apparent refusal to stipulate to defendant's identity. Defense counsel eventually stipulated to defendant's identity and that the prosecution could introduce defendant's photograph at trial. At that point, the court granted defense counsel's request to proceed in defendant's absence under section 977.
Defendant's trial lasted one day. Immediately after the jury returned the verdicts, defense counsel requested the court conduct the sentencing hearing. The court asked whether counsel was going to waive defendant's presence under section 977 or if defendant should be present. Counsel again waived defendant's presence and the court conducted the sentencing hearing. This exchange occurred less than 24 hours after the court's initial discussion with defense counsel about whether he had the authority to waive defendant's presence for the jury trial.
Defendant argues the court improperly accepted defense counsel's waivers in his absence without obtaining his knowing and voluntary waiver through either his personal appearance or a written document. In making these arguments, defendant relies on People v. Welch (1999) 20 Cal.4th 701, but that case addresses a defendant's absence from a critical stage of a felony trial. (Id. at pp. 773-774.) As explained above, there are different constitutional and statutory considerations for a defendant's ability to waive presence at a felony trial and/or a capital case that do not apply to misdemeanor trials. (See, e.g., People v. Wall (2017) 3 Cal.5th 1048, 1059-1060; People v. Gutierrez (2003) 29 Cal.4th 1196, 1202-1206; People v. Majors (1998) 18 Cal.4th 385, 415; People v. Dickey (2005) 35 Cal.4th 884, 923.)
Defendant contends there was no evidence defense counsel had authority to waive his presence at either the jury trial or the sentencing hearing. However, the court in a misdemeanor trial "'can rely upon the representations of defense counsel that the accused was knowingly absent from the proceedings.'" (People v. Fedalizo, supra, 246 Cal.App.4th at p. 110.)
"To assume that [defense counsel] acted without authority would not only be contrary to well-settled law and the norms of appellate review, but also would cause serious and needless disruption to the court system. Courts routinely rely on the express or implied representations of attorneys, as officers of the court, on a wide range of matters. [Citations.] The inability to rely on counsel's representations would be especially disruptive in misdemeanor courts. In most misdemeanor cases, a defendant is not required to make an appearance. [Citation.] When defense counsel appears in such cases stating that he or she is appearing '[section ]977[, subdivision ](a),' trial courts regularly accept that representation, unless there is specific cause for doubt. A trial court is not required to get written confirmation from the defendant or order the defendant to appear for that purpose. [Citation.] We see no reason to disturb the normal operations of the court out of fear that a defense attorney will not fulfill his or her most basic duty." (People v. Fedalizo, supra, 246 Cal.App.4th at pp. 107-108, fns. omitted; accord, People v. American Bankers Ins. Co., supra, 191 Cal.App.3d 742 at p. 747; People v. International Fidelity Ins. Co., supra, 212 Cal.App.4th at p. 1562.)
Defendant argues that to the extent an attorney can waive a defendant's presence at a misdemeanor trial, counsel "immediately rebutted" his alleged authority because he also said he was "not sure" about defendant's situation or his ability to be present. Defendant contends counsel's statements show he lacked authority to waive his presence once he admitted "he was not aware whether [defendant] was available or not."
Defendant's argument is based on defense counsel's statement that defendant "has had an operation scheduled and rescheduled several times. I'm not really sure what his situation is right now as far as his ability to be here."
While defense counsel made this statement, it is important to note the context for the remarks. Defense counsel had already stated he had authority to waive defendant's presence for trial under section 977. The court was willing to grant the request, but the prosecutor objected because defense counsel refused to stipulate to defendant's identity for purposes of trial. In response to the prosecutor's objections, the court asked defense counsel whether he would stipulate to defendant's identity if the People produced a photograph, or "[o]therwise I can revoke the [section] 977 and make [defendant] or order [defendant] to appear [or] if he doesn't, issue a warrant." The prosecutor presented a photograph of defendant. The court asked defense counsel to look at it before the court overruled the People's objection to his motion under section 977. At that point, defense counsel said: "I don't think it's relevant but [defendant] has had an operation scheduled and rescheduled several times. I'm not really sure what his situation is right now as far as his ability to be here." The court again asked defense counsel if he would stipulate the photograph showed defendant, and counsel said yes. Thus, counsel's statements about defendant's immediate whereabouts were not about whether he talked with defendant about waiving his presence, but in response to the court's intent to order defendant's presence if counsel refused to stipulate to defendant's identity. These statements did not undermine counsel's authority to waive defendant's presence.
In addition, the postjudgment proceedings in this case further support the conclusion that defendant's presence was validly waived. At the first postjudgment hearing, defendant was still on bail and appeared with Mr. Lampkin, who had represented him at the trial and sentencing hearing and waived his presence. The court granted Mr. Lampkin's request to withdraw because of a conflict and appointed new counsel. There is no evidence defendant complained the trial and sentencing had been held in his absence or that Mr. Lampkin lacked authority to waive his presence.
Thereafter, defendant's new attorney filed a motion for bail on appeal. At the hearing on the motion, defendant appeared with his new attorney, and there is no evidence defendant or counsel objected to the waiver of his presence or sought to file a motion for new trial to vacate defendant's conviction because of Mr. Lampkin's waiver. "If [the] defendant had not authorized the attorney to represent him at [trial and sentencing], this would have been an exceptionally opportune time to notify the court of this fact." (People v. Fedalizo, supra, 246 Cal.App.4th at p. 105.)
As a result, the presumption that Mr. Lampkin had authority to appear and act for defendant when he waived his presence at the trial and sentencing hearing was not rebutted by any "strong factual showing" to the contrary. (People v. American Bankers Ins. Co., supra, 191 Cal.App.3d at p. 747; accord, People v. International Fidelity Ins. Co., supra, 212 Cal.App.4th at p. 1563.) "If the presumption of correctness is to have any meaning, it requires us to draw a reasonable inference that [the] defendant authorized [his attorney] to act on his behalf and waive his presence. To presume otherwise is to infer instead that the lawyer acted without authority in violation of his solemn legal duty." (People v. Fedalizo, supra, 246 Cal.App.4th at p. 106, fn. omitted.)
Defendant asserts the court's alleged violation of his constitutional right to be present was not harmless beyond a reasonable doubt because "[i]t is impossible to know what follow-up questions [defendant] may have had" for Deputy Vollmer, he never had the chance to rebut Vollmer's testimony or decide to testify on his own behalf, and he was denied the opportunity to raise mitigating factors at sentencing.
The violation of a defendant's constitutional right to be present, even in a felony case, may be found harmless if the reviewing court concludes beyond a reasonable doubt that the deprivation did not affect the outcome of the proceeding. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Mendoza (2016) 62 Cal.4th 856, 901; People v. Simms, supra, 23 Cal.App.5th at p. 998.) Statutory errors under sections 977 and 1043 are not prejudicial unless it is reasonably probable a result more favorable to the defendant would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Mendoza, supra, at p. 902.)
We find defendant's claim of error was harmless under any standard. Defense counsel ably represented defendant and extensively cross-examined Deputy Vollmer on the possibility that someone else threw the can at him. Counsel also asked Vollmer about his failure to collect and preserve the soda can for possible fingerprint and DNA tests. Defendant complains that he might have testified at trial, but defense counsel stated defendant was not going to testify. The court instructed the jury not to consider or speculate about defendant's absence, which further supports the conclusion that any possible error is harmless. (People v. Mendoza, supra, 62 Cal.4th at p. 903.) As for the sentencing hearing, the court placed defendant on probation and subsequently granted his motion for release pending appeal. Finally, defendant appeared at the postjudgment hearing with a new attorney and never asserted he was denied his right to appear or testify at trial. II. Denial of Trombetta motions
Defendant filed two motions to dismiss the charges pursuant to Trombetta, supra, 467 U.S. 479, based on the claim that Deputy Vollmer had a duty to collect the soda can, instead of leaving it at the scene, because it was potentially exculpatory. The motions were denied.
The defendant renews his Trombetta arguments on appeal and argues Deputy Vollmer had a duty to collect and preserve the can because its evidentiary value was clear at the time of his arrest and it was potentially exculpatory because Vollmer never saw who threw it and the defense could have examined it to support the theory that someone else threw it.
A. Trombetta
"Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence 'that might be expected to play a significant role in the suspect's defense.' [Citations.] To fall within the scope of this duty, the evidence 'must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.' [Citations.] The state's responsibility is further limited when the defendant's challenge is to 'the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.' [Citation.] In such case, 'unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.'" (People v. Roybal (1998) 19 Cal.4th 481, 509-510, quoting Trombetta, supra, 467 U.S. at pp. 488-489 & Arizona v. Youngblood (1988) 488 U.S. 51, 57, 58 (Youngblood); accord, People v. Montes (2014) 58 Cal.4th 809, 837 (Montes).)
The court's ruling on a Trombetta motion will be affirmed if supported by substantial evidence. (Montes, supra, 58 Cal.4th at p. 837.)
B. Pretrial motion to dismiss
Defendant made two motions under Trombetta. He filed his first motion just after the mistrial was declared in his first jury trial. This motion asserted the People violated his constitutional rights by failing to preserve the soda can that hit Deputy Vollmer. Defendant asserted that officers seized the can but failed to preserve it, and "abandon[ed] it" without examining the can for DNA and/or fingerprints. Defendant argued the can was material exculpatory evidence, and the officers knew this before the can was "abandon[ed]," because the defense theory was that the child's mother threw the can at Deputy Vollmer.
The People's opposition argued a Trombetta motion to dismiss should be reserved for the trial court to decide based on the entirety of the evidence. The People further argued the alleged exculpatory value of the can was not obvious at the time of defendant's arrest because defendant was the only person present when the can was thrown at Deputy Vollmer.
C. Denial of Pretrial Trombetta motion
On January 5, 2017, the court denied defendant's motion and found Trombetta only applied if exculpatory evidence is collected by law enforcement and not preserved. The court further found Trombetta did not impose a duty on the People to collect evidence that might be beneficial to the defense. The court found the soda can in this case was never collected so Trombetta did not apply. The court made the ruling without prejudice to defendant renewing the motion at the time of trial.
D. Defendant's renewed Trombetta motion
Defendant renewed his Trombetta motion just before the beginning of his jury trial on the two misdemeanor charges. He filed a motion in limine for sanctions or dismissal under Trombetta, again based on the People's failure to collect and preserve the can that he allegedly threw at Deputy Vollmer. Defendant argued the can's exculpatory value was apparent at the scene, and the deputy's "abandonment" of the can summarily denied defendant's ability to present favorable and material evidence to refute his culpability.
The People's opposition asserted the deputies were not required to collect evidence and photographs had been taken of the scene, the soda can, and Deputy Vollmer's clothing.
E. The court's denial of defendant's renewed Trombetta motion
During the motions in limine immediately before defendant's jury trial, the court asked the parties to address defendant's renewed Trombetta motion. Defense counsel argued the soda can had allegedly been used as a weapon and Deputy Vollmer threw it away without a reason.
The prosecutor argued there was no apparent exculpatory value to the can at the time of the incident because Deputy Vollmer stated no one else could have thrown it. Defendant now claimed some third party could have thrown it, "but at the time with the officers, there was no other question as to how this happened. Therefore, there was no exculpatory value to the can of soda ... for the purposes of testing somehow the DNA [or] fingerprint[s] and it certainly was not apparent on its face." While the can was not collected, it was photographed to show what had been thrown at the deputy, and there was "no immediate apparent exculpatory value to the can ... when it was more than readily apparent who threw it."
The court found Trombetta addressed evidence that was lost or destroyed while under the control of the People or law enforcement, and did not create a duty to seize evidence. The court denied defendant's Trombetta motion for sanctions or dismissal.
F. Analysis
Both of defendant's Trombetta motions were based on Deputy Vollmer's failure to collect and preserve the exploded soda can as evidence, based on defendant's trial theory that he could have potentially tested it for fingerprints or DNA evidence to show someone else threw it.
"Generally, due process does not require the police to collect particular items of evidence. [Citation.] 'The police cannot be expected to "gather up everything which might eventually prove useful to the defense."'" (Montes, supra, 58 Cal.4th at p. 837.) "Although this court has suggested that there might be cases in which the failure to collect or obtain evidence would justify sanctions against the prosecution at trial, we have continued to recognize that, as a general matter, due process does not require the police to collect particular items of evidence." (People v Frye (1998) 18 Cal.4th 894, 943, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; accord, Montes, supra, at p. 837.)
In Youngblood, the defendant raised mistaken identity as a defense and claimed law enforcement's failure to refrigerate the victim's clothing and test semen samples violated due process. (Youngblood, supra, 488 U.S. at pp. 54-55.) Youngblood held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." (Id. at p. 58.) The failure to preserve the clothing "can at worst be described as negligent," and there was "no suggestion of bad faith on the part of the police." (Ibid.) Youngblood also rejected the argument that due process required the police to use a particular investigatory tool because "the police do not have a constitutional duty to perform any particular tests." (Id. at p. 59.)
In Montes, the defendant moved for sanctions or to dismiss under Trombetta because the police failed to take the defendant's blood sample when he was arrested, and argued it could have been used to support the defense that he was under the influence of drugs at the time of the crime. (Montes, supra, 58 Cal.4th at pp. 836-837.) Montes held "'[t]he police cannot be expected to "gather up everything which might eventually prove useful to the defense."'" (Id. at p. 837.)
"'Trombetta speaks of evidence whose exculpatory value is "apparent."' [Citation.] Here, the testimony indicated the officers did not believe [the] defendant was under the influence of drugs when arrested. The testimony also failed to establish an apparent exculpatory connection between the possible presence of a narcotic in a defendant's blood when he was arrested and his level of intoxication, if any, when the murder was committed nearly 24 hours earlier.
"[The] [d]efendant's failure to show the apparent exculpatory value of a blood sample at the time of his arrest also bears on the issue of whether the police acted in bad faith. '[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.' [Citation.] Because '[t]he presence or absence of bad faith by the police ... must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed' [citation], defendant has failed to establish bad faith in this case." (Montes, supra, 58 Cal.4th at p. 838.)
In this case, defendant's Trombetta motions were correctly denied because due process does not require law enforcement to collect and preserve evidence. "This is not a case where evidence initially gathered was destroyed." (Montes, supra, 58 Cal.4th at p. 837.) Even assuming Trombetta applies in this case, however, there is substantial evidence to support the court's express and implied findings in support of the denial of defendant's motions to dismiss.
In order to trigger the duty to preserve, the first question is whether the evidence possessed "an exculpatory value that was apparent before the evidence was destroyed ...." (Trombetta, supra, 467 U.S. at p. 489.) Defendant asserts the soda can was potentially exculpatory and should have been preserved for tests because defendant's "significant other and child had to be nearby, as well as any number of other people who lived in the complex."
The alleged exculpatory nature of the soda can was not apparent at the time of defendant's arrest. (Trombetta, supra, 467 U.S. at p. 489.) Deputy Vollmer testified no one else was in the parking lot during his exchange with defendant. Based on Vollmer's uncontested description of the area, defendant's car was backed into a parking spot, and the rear of the car was against a wall so that no one could stand behind defendant. The front of the Honda was facing Vollmer as he walked up to the car. Vollmer could not see defendant's hands as he turned around to walk back to his patrol car, because defendant was standing behind the open driver's door of the Honda. Vollmer was within five feet of defendant when he felt the can hit his back, and he never saw anyone else in the parking lot or the entire area. Any exculpatory value in the can itself was remote at best at the time of defendant's arrest.
The next question is whether the evidence was "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Trombetta, supra, 467 U.S. at p. 489.) Defendant concedes the deputies took photographs that showed the soda can's condition. Deputy Vollmer testified about his conversation with defendant and testified someone would have been required to "cover a ground of approximately 40 yards to be out of my view of vision and I believe in about a one second time frame" to have thrown the can in the same manner.
Finally, "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." (Youngblood, supra, 488 U.S. at p. 58; accord, Montes, supra, 58 Cal.4th at p. 838.) "The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." (Youngblood, supra, 488 U.S. at pp. 56-57, fn. *.) The bad faith requirement "both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." (Id. at p. 58.)
Defendant asserts Deputy Vollmer's failure to collect the soda can was made in bad faith because he was both the arresting officer and the "victim" of the charged offenses, and Vollmer likely made a conscious decision not to collect the can. However, the record shows Vollmer followed his department's procedures when he decided not to collect an exploded can that was covered with soda and instead took photographs of the object. Vollmer also testified that it would have been impossible to obtain fingerprints or DNA from a can covered in soda; the defense did not introduce any evidence to the contrary.
The court's denials of defendant's Trombetta motions are supported by substantial evidence. III. Denial of Pitchess motion
Defendant filed a pretrial Pitchess motion for discovery of Deputy Vollmer's personnel records. The court found good cause and reviewed certain records at an in camera hearing. After the hearing, it advised the parties that it was denying defendant's motion for discovery or disclosure of any information.
On appeal, defendant requests this court to review the confidential records to determine if the Pitchess motion was properly denied. The People agree to such a review.
A. Pitchess motion
On November 20, 2015, prior to defendant's first trial that ended in a mistrial, defendant filed a motion pursuant to Evidence Code section 1043 et seq. and Pitchess for discovery of the confidential personnel records of Deputy Vollmer for false testimony. The motion was supported by defense counsel's declaration.
Defendant's Pitchess motion also sought the confidential records for Officers "Juarez" and "Seibert," but the trial court never discussed these two individuals. On appeal, appellate counsel states these two names were mistakenly included in defense counsel's motion, and acknowledges they were not involved in defendant's case and are not relevant to his Pitchess motion.
On December 24, 2015, the district attorney filed opposition to the Pitchess motion and, in the alternative, requested the court to conduct an in camera review of any documents.
B. The court finds good cause
On January 19, 2016, the court found good cause to review Deputy Vollmer's records for dishonesty, cleared the courtroom, and conducted an in camera hearing.
C. Analysis
When a defendant seeks discovery from a peace officer's personnel records, he or she must file a written motion that satisfies certain prerequisites and makes a preliminary showing of good cause. If the trial court determines that good cause has been established, the custodian of records must bring to the court all documents that are "'potentially relevant' to the defendant's motion." (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) The trial court shall examine these documents in camera, outside of the presence of all persons except the custodian of records. The court should then decide whether to disclose to the defendant "'such information [that] is relevant to the subject matter involved in the pending litigation,'" subject to specific exclusions and limitations. (Ibid.) The court's ruling on a Pitchess motion is reviewed for an abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.)
We have independently reviewed the sealed reporter's transcript of the in camera Pitchess hearing and the confidential materials submitted to this court under seal. We find the court followed the proper procedures and created an appropriate record for appellate review, and did not abuse its discretion when it denied defendant's Pitchess motion.
DISPOSITION
The June 29, 2017, minute order of the sentencing hearing must be amended to state that the court placed defendant on probation subject to serving 90 days in jail. In all other respects, the judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
DeSANTOS, J.