Opinion
F058327 Super. Ct. No. BF124872A
08-22-2011
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO PONCE, Defendant and Appellant.
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Marcia A. Fay, and Kari L. Ricci, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee and Michael G. Bush, Judges.
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Marcia A. Fay, and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
On September 14, 2008, three-year-old Jordy Giron (Jordy) was standing at the curb in front of an apartment complex when he was run over by a pickup truck driven by appellant/defendant Armando Ponce. Defendant ran from the scene but was apprehended by neighbors who followed him as he tried to escape and hide. Jordy suffered serious head and internal injuries but survived.
Defendant was charged and convicted of count I, driving under the influence of alcohol and, in so driving, performed an unsafe turn and/or without signaling, proximately causing bodily injury (Veh. Code, §§ 23153, subd. (a), 22107); count II, driving while having a blood-alcohol level of 0.08 percent or more and, in so driving, performed an unsafe turn and/or without signaling, proximately causing bodily injury (Veh. Code, §§ 23153, subd. (b), 22107); and count IV, misdemeanor driving without a valid driver's license (Veh. Code, § 12500, subd. (a)). In count III, he was charged with being a driver involved in an accident resulting in death or permanent serious injury to another (Veh. Code, § 20001, subd. (b)(2)), but he was convicted of the lesser included offense of hit and run with injury (Veh. Code, § 20001, subd. (b)(1)).
As to counts I, II, and the lesser offense of count III, the jury found defendant personally inflicted great bodily injury on a person under the age of five years old in the commission of the crimes (Pen. Code, § 12022.7, subd. (d)). He was sentenced to eight years and eight months in state prison.
On appeal, defendant argues the court improperly admitted his pretrial confessions because the statements were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and involuntary. Defendant also contends his Sixth Amendment rights to confront and cross-examine witnesses were violated when the court permitted the arresting officer to testify about hearsay statements made by witnesses at the collision scene, as to whether another vehicle triggered the collision. Defendant raises another confrontation clause issue, contending the results of his preliminary alcohol screening (PAS) tests should have been excluded because the officer who calibrated the PAS device did not appear at trial. Defendant further argues the court improperly permitted an expert to testify about retrograde extrapolation of his blood-alcohol test, taken an hour after he was driving, to offer an opinion as to what his blood-alcohol level was at the time he was driving.
Defendant also contends the court should have granted his pretrial motion for disclosure of the confidential personnel records of the chief investigating officer, Officer Matt Iturriria of the California Highway Patrol (CHP), pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).As we will explain in section V, post, the superior court reviewed eight confidential files at in camera hearings and denied disclosure. After the in camera hearings, the CHP's custodian of records destroyed three of those confidential files pursuant to the CHP's routine record "retention policy." We will find that the court's denial of defendant's Pitchess motion, and the routine destruction of three of the confidential files, were not prejudicial given the facts and circumstances of this case.
Finally, defendant raises two sentencing issues. We will remand for the court to clarify the underlying reasons for imposition of one of the fines, and otherwise affirm.
FACTS
Around 6:00 p.m. on September 14, 2008, Crystal Amundson and her 15-year-old son, Michael, were pulling out of the driveway of the apartment complex where they lived on Kentucky Street in Kern County. Amundson looked to her side and noticed three-year-old Jordy Giron was standing at the curb by his family's vehicle and next to the apartment complex's mailboxes. There were two rows of mailboxes that were about six feet high. The mailboxes were imbedded in cement and adjacent to a metal fence.
As Amundson backed out of the driveway, she heard the sound of squealing tires. She looked towards the street and saw a truck, later identified as defendant's vehicle, swerving like it was trying to stop, but it appeared to go out of control. A white truck swerved out of the way of defendant's truck and pulled over to the side of the road. Amundson was sure the white truck did not hit the defendant's truck.
Amundson and her son testified the defendant's truck jumped the curb and hit Jordy, the apartment's mailboxes, the adjoining fence, and then came to a stop. Defendant's truck started "peeling out really, really bad" on the grass, and Amundson thought the driver was trying to get away. Amundson kept her own vehicle in the path of the defendant's truck so it could not leave the scene.
Amundson's son, Michael, testified defendant's truck, which caused the collision, was a Chevrolet Silverado. Michael testified the driver, later identified as defendant, looked at him immediately after the impact. Defendant then jumped out of the truck and ran through the apartment complex. Michael was positive defendant did not have a head injury when he ran from the scene.
Amundson recognized defendant as one of the apartment complex's tenants. Amundson was not sure if defendant realized Jordy had been hit, or if he saw the child as he ran from the scene. Amundson told her son that defendant had just run over a child, and her son jumped out of their vehicle and ran after defendant.
Amundson ran into her apartment, told her boyfriend to call 911, and grabbed a towel. As she ran back to Jordy, she noticed the white truck was still parked on the side of the road and the driver's side door was open. Defendant's truck was still on the grass. Amundson found Jordy lying on the grass, trapped under the apartment's mailboxes and the fence. Amundson used the towel and tried to stop massive bleeding from his head. The child was convulsing and there was matter protruding from the back of his head. He was also bleeding from a large gash across his chest, where he was hit by the truck's front bumper.
Graciella Giron (Graciella), Jordy's sister, was 13 years old at the time of the trial. Graciella testified that she did not see the collision because she was inside her cousin's apartment, but she heard a loud noise like metal on metal. She ran outside and saw defendant's truck and Jordy on the grass. Graciella saw the driver of the truck get out and run through the apartment complex. Graciella ran back into her cousin's apartment and called 911. The neighbors chase defendant
In the meantime, Amundson's son, Michael, chased defendant through the apartment complex. Several neighbors and bystanders joined in the pursuit. Michael lost sight of defendant for about two minutes, and then someone found defendant hiding between a mattress and box spring. Michael testified that one man walked up to defendant and tackled him to the ground. Michael testified this man "took [defendant] down" and kept yelling at defendant and asking, "[D]id you do it? And [defendant] was saying no." Michael testified this man sat on defendant until an officer arrived. Michael did not see anyone kick defendant and there were no other physical altercations.
Anna Cruz, the manager of the apartment complex, lived in the rear of the building and did not witness the collision. Cruz was inside her apartment when she heard a loud boom, and her daughter shouted that someone was chasing defendant. Cruz went outside and saw three or four men running after defendant. They were "[m]ore than hostile" and they were swearing and saying "[j]ust get him, get him." Cruz testified defendant was "a little guy" and his pursuers were much larger. Cruz heard one man say: "[S]hould have got that mother f***** and beat him down."
Cruz testified she did not know what was going on so she walked to the front of the apartment complex. Cruz saw defendant's truck, the mailboxes, the fence, and several people around the child. Cruz also saw a white truck parked at an angle, close to the scene, as if it had abruptly stopped to check out what was going on. Cruz testified the white truck took off and "fled the scene."
Cruz testified she did not inspect defendant's truck at the scene. After the truck was impounded, however, Cruz later retrieved it from the tow yard and determined the truck's back and side bumper were "pushed in" and "[t]here was white paint." The 911 calls
At trial, Cruz testified she visited defendant in jail shortly after he was arrested, and they discussed the incident. Defendant subsequently called her from jail and she accepted the collect call. Cruz testified she cared about defendant and did not want anything bad to happen to him because of the collision.
The court admitted recordings of several 911 calls received by the dispatch operator within seconds of each other. The first call was from a woman at 6:01 p.m., and she said there was an accident on Kentucky Street and a little boy was hit. A man made the next call, and he said there was an accident and they needed an ambulance. In the background, the man told someone to perform CPR and get some air in the boy's mouth.
A third call was made by a female who said her little brother had been hit by a car; the record implies the caller was Graciella. She said a beige truck was involved and it was still there.
A fourth call was made by a male, who said there was an accident on Kentucky and "we've got the subject over there. We have the suspect over here on the ground." The man said they had "the guy that caused the accident," and mentioned something about a black truck.
As we will explain,post, the black vehicle belonged to Jordy's family.
A female placed another 911 call. She said she was in her house and she heard a "big old crash," and there was one vehicle in front of the building. This caller identified herself as Anna Cruz, and said she thought a woman was involved. The operator asked what kind of car was involved in the crash. Cruz said she saw a black SUV but "the truck that got away was a white ... I want to say a Nissan Titan," and it looked like "he hit him on purpose, the white truck." The operator asked for more details about the driver, and Cruz handed the telephone to another female. This person said the driver was Hispanic and a kid was injured.
At trial, Anna Cruz was asked to listen to the 911 recording and confirm whether her voice was on the tape. Cruz testified that she thought she called 911, but she did not recognize the caller's voice.
There was also a 911 call from a female who reported that a guy ran through a fence and hit a baby, and she was trying to find a pulse on the victim. A man then took the telephone and said he was in the house and did not know what happened, but a three-year-old boy had a gash on his head, and the child was breathing but not moving. Officer Iturriria arrives at the scene
CHP Officer Matt Iturriria responded to a dispatch regarding a collision involving a vehicle and a child. As he headed to the scene, he received an update that it was a possible hit-and-run, the suspect's vehicle might still be there, and a white Nissan Titan pickup truck might be involved and was still outstanding.
Officer Iturriria arrived at the apartment complex and saw defendant's Chevrolet pickup truck in the apartment complex's yard. The truck had knocked down a wrought iron fence and a mailbox. A child was on the ground with severe head trauma and he was being treated by paramedics. Some people approached his patrol car and said the suspect was down the street. Iturriria saw a group of people and drove to that location.
Officer Iturriria testified that about a quarter mile away from the collision scene, he found defendant and "dozens" of people standing around him. There were four or five people who were directly over defendant, and they were swearing and threatening him. Iturriria did not see any physical contact between defendant and the group, he did not hear any death threats, and he did not see anyone sitting on top of defendant.
Iturriria directed everyone to step back and the bystanders complied right away. Iturriria did not have any details about what happened. He took defendant to his patrol car and asked, "[W]hat happened, what's going on?" Defendant replied that "he was involved in a crash, and he thought that he might have hit a child, and didn't want to see the child dead." Iturriria immediately detected the odor of an alcoholic beverage from defendant, his speech was slurred, his eyes appeared bloodshot, and he appeared to be intoxicated on alcohol.
As we will discuss in section I, post, defendant moved to exclude this statement as being the product of an illegal custodial interrogation in the absence of the Miranda warnings. The superior court denied defendant's motion, and we will similarly find that defendant was not in custody and his statement was admissible.
Officer Iturriria, who was also trained as a paramedic, testified defendant had "very little blood from a superficial laceration on his forehead," and the laceration was about two inches long. Iturriria evaluated defendant and determined he did not have any symptoms of severe head trauma. He was alert, oriented, and responded appropriately to questions.
Iturriria decided not to perform field sobriety tests at that time because of the number of people who were still in the area. Iturriria placed defendant in handcuffs and put him in the patrol car "because there was too many people around that wanted to get to him." The investigation at the collision scene
Officer Iturriria drove defendant back to the collision scene and left him in the patrol car while Iturriria and CHP Officer Petty conducted the investigation.
Officer Petty determined the left front headlight of defendant's truck was broken, and there was minimal damage on the left side. There was more extensive damage across the truck's front bumper and front grill and all the way along the truck's right side. The truck's front license plate and right-side mirror were on the grass. There was no damage to the rear of defendant's truck. The truck had knocked one of the apartment's mailbox structures out of the ground, "back quite a ways onto a grass area," and through the metal fence. There were no skid or tire friction marks on the street.
Officer Iturriria interviewed Amundson and other witnesses at the collision scene. Iturriria had previously received a dispatch that a white pickup truck was possibly involved in the collision and still outstanding. He asked Amundson and the other witnesses if they had seen a white truck that was involved in the collision, and everyone said no.
Officer Iturriria interviewed Mark Heredia, who said he was standing in his front yard just east of the crash scene. Heredia said he saw defendant's truck pass by at a high rate of speed, about 50 to 55 miles per hour. Heredia said he heard a loud crashing sound a short time later. He ran toward the sound and found defendant's truck and the child on the ground. Heredia said defendant ran from the scene, and Heredia joined in the chase and helped detain defendant. Iturriria asked Heredia if a white truck was involved in the collision. Heredia said he wasn't sure if he saw a white truck pass by his house before or after defendant's truck, or if defendant passed the white truck. However, Heredia said a white truck was not involved in the crash.
In section II, post, we will address the admissibility of Officer Iturriria's testimony about Heredia's statement.
Iturriria had also received a dispatch that a black SUV might have been involved, but he determined that vehicle belonged to Jordy's father, and it was still parked at the collision scene. Defendant's PAS test
Officer Iturriria interviewed Jordy's father shortly after the child was taken to the hospital. Jordy's father was distraught, but said he heard the crash and did not see a white car.
After Iturriria completed the interviews, he returned to the patrol car and administered two PAS tests to defendant. At 6:18 p.m., the result of defendant's PAS test was 0.099 percent. At 6:20 p.m., the result was 0.089 percent. Iturriria testified that defendant gave "extremely weak" breath samples, and explained the PAS test is more accurate "[t]he stronger the breath sample and the longer the person blows into the device."
A PAS device is "a breathtesting instrument used to determine either the presence or concentration of alcohol in a person's blood. Such device may be used by police ... in order to make a preliminary determination of sobriety prior to arrest. [Citation.]" (People v. Bury (1996) 41 Cal.App.4th 1194, 1198.)
Iturriria then performed the horizontal gaze nystagmus test on defendant while they stood next to the patrol car. The test requires the subject to follow an object with his eyes without moving his head. If someone has nystagmus before the eyes reach a 45 degree angle, that indicates his blood-alcohol content is over 0.08 percent. Iturriria testified defendant had a distinct nystagmus in both eyes consistent with alcohol intoxication, and testified to his belief that defendant's reactions were consistent with having a blood-alcohol level of over 0.08 percent. Defendant's confession
" 'Nystagmus' is an involuntary rapid movement of the eyeball, which may be horizontal, vertical, or rotatory. [Citation.] An inability of the eyes to maintain visual fixation as they are turned from side to side (in other words, jerking or bouncing) is known as horizontal gaze nystagmus, or HGN. [Citation.]" ( People v. Ojeda (1990) 225 Cal.App.3d 404, 406; People v. Leahy (1994) 8 Cal.4th 587, 592.) "The theory supporting HGN testing is that intoxicated persons exhibit HGN and that a field test conducted by a police officer can identify the condition. [Citations.]" (People v. Joehnk (1995) 35 Cal.App.4th 1488, 1493.)
After he interviewed witnesses at the scene, Officer Iturriria returned to his patrol car and advised defendant of the Miranda warnings, and defendant waived his rights.Iturriria asked defendant about his physical condition and the collision. Defendant said his head hurt and he had been punched a few times, but he did not report any other medical or physical conditions.
As we will discuss in section I, post, defendant argues his waiver was not knowing and intelligent because he was intoxicated and had been beaten by the angry bystanders.
Defendant said he started drinking at 2:00 p.m. at Mercado Latino, he had about 9 or 10 beers, and he stopped around 5:30 p.m. Defendant could not remember when or what he had eaten. Defendant said he left the Mercado Latino and he was driving home to the apartment complex. Defendant said he was driving about 40 miles per hour and slowed down as he was about to turn into the driveway. Defendant said "he was in a hurry because he had to go to the bathroom. He realized that he was going to miss the turn. He turned sharply to the right, went up onto the sidewalk, struck the mailbox and the fence. He believed that he may have struck a child. He wasn't sure. [¶] When the vehicle came to rest, he got out, confirmed that he did, in fact, hit a child, and then ran from the scene because he didn't want to see a dead baby." Defendant repeatedly asked about the little boy's condition.
Iturriria testified the speed limit was 35 miles per hour.
Iturriria asked defendant if he was involved in an accident with a white truck or knew anything about that vehicle. Defendant said, "[N]o."
Iturriria determined defendant's driver's license expired in August 2005. Defendant said he did not know it had expired.
It was stipulated that defendant did not have a valid driver's license at the time of the collision.
Iturriria testified to his opinion that defendant was under the influence of alcohol, based on the PAS test results, the horizontal nystagmus test, and his objective signs of intoxication. Iturriria believed defendant had been under the influence when he was driving the truck based on "the nature and circumstances of the crash, his objective signs of alcohol intoxication, his display of horizontal gaze nystagmus and the PAS device ...." Defendant's blood-alcohol level
After the collision, defendant was taken to the hospital and a nurse took a blood sample for a blood-alcohol test. Defendant's laceration was also treated. Defendant's blood sample was taken at 6:59 p.m., within one hour of the collision, and his blood-alcohol level was 0.10 percent. Defendant's blood sample was tested again at a later date, and the result was 0.101 percent. A criminalist testified the two figures were close enough to constitute "a biological variability."
Robert Kane was the criminalist who conducted the first test on defendant's blood sample, and Maria Sanchez, another criminalist, conducted the second test. Both Kane and Sanchez testified at trial.
Robert Kane, the criminalist who conducted the blood-alcohol tests on defendant's blood sample, testified about the concept of "retrograde extrapolation" of a person's blood-alcohol level to determine the percentage at the time that person was driving.Kane was trained to determine what a person's blood-alcohol level was at the time that person was driving, when given other information such as gender, weight, the person's drinking pattern, and the PAS test results. Based on the prosecutor's hypothetical using these factors, Kane testified defendant's blood-alcohol level could have been between 0.110 percent and 0.120 percent when he was driving. Kane estimated that defendant had 2.9 to 3.8 beers in his system when he was driving. Jordy's injuries
In section IV, post, we will address defendant's contentions regarding the evidence of retrograde extrapolation.
Jordy was taken to Kern Medical Center in critical condition. He was comatose and had difficulty breathing. He had lacerations and abrasions on his head, chest, and abdomen. He had multiple skull fractures, multiple lacerations on his head, and multiple bleeding areas and air inside of his brain. His liver was cut open, his spleen was damaged, and he was bleeding internally into his abdomen from his spleen and kidney. A physician told Jordy's parents that day that his brain was swelling, there was no hope, and he was going to die.
Jordy was transferred to Children's Hospital of Central California. Jordy survived and recovered after spending one month in intensive care and going through a lengthy rehabilitation period.
At trial, the emergency room physician who treated Jordy on the day of the collision testified that the long term effects of his brain injuries could range from being normal, to being severely retarded and/or having severe motor dysfunction. Such results could take years to manifest themselves and would require detailed testing.
DISCUSSION
I. Defendant's pretrial confessions were admissible
Defendant contends the court should have granted his pretrial motion to exclude both his pre- and post-Miranda confessions to Officer Iturriria. Defendant argues his pre-Miranda confession should have been excluded because he was in custody when Iturriria ordered the bystanders to step back and he asked defendant what happened. Defendant further argues his post-Miranda confession was tainted by the prior Miranda violation, and he was not capable of giving a knowing, intelligent, and voluntary waiver because he was intoxicated and had been punched in the head by the bystanders who chased him after the collision.
As we will discuss in section V, post, defendant filed a Pitchess motion for discovery of Officer Iturriria's personnel records, based on his claim that he never confessed at the scene. We will find that the denial of defendant's Pitchess motion was not prejudicial given the independent evidence-completely separate and apart from Iturriria's testimony about defendant's confession-regarding the nature and causes of the collision, defendant's erratic driving, and defendant's intoxication.
"In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under Miranda ..., the scope of our review is well established. 'We must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained.' [Citations.] We apply federal standards in reviewing defendant's claim that the challenged statements were elicited from him in violation of Miranda. [Citations.]" (People v. Bradford(1997) 14 Cal.4th 1005, 1032-1033.)
A. The evidentiary hearing
At the superior court's pretrial evidentiary hearing on defendant's motion, Officer Iturriria was the only witness and testified he responded to a dispatch about a traffic collision, "vehicle versus a pedestrian," and that an ambulance was en route. When he arrived at the collision scene, bystanders directed him further down the street and said the driver was down there.
Iturriria found defendant surrounded by a "mob" of "dozens of people" from the neighborhood. The bystanders were yelling at defendant. They kept him on the ground and appeared to be threatening him. Iturriria ordered the crowd to step back so he could approach defendant and they complied.
Iturriria did not have enough information to arrest defendant at that point. However, Iturriria decided that defendant would be detained and he would not be free to leave. Iturriria did not advise defendant of the Miranda warnings. There is no evidence that Iturriria told defendant he was not free to leave or that he was being detained.
Iturriria asked defendant what happened and defendant gave a statement. Iturriria detected the odor of alcohol and suspected defendant was under the influence. Iturriria did not ask defendant any other questions. Based on defendant's statement, Iturriria placed him in handcuffs and escorted him into the patrol car for defendant's own safety from the crowd. Defendant was able to walk to the patrol car without assistance.
Iturriria testified defendant was bleeding from a visible injury or "laceration" on his forehead. Iturriria did not know if defendant suffered the injury from the crash or the encounter with the crowd. Iturriria was a certified emergency medical responder and a licensed paramedic, and knew the physical and subjective indications of head trauma. Iturriria testified that defendant's laceration was not a medical emergency and there were no indications of head trauma. Defendant was not confused, he gave appropriate responses to questions, and Iturriria determined that treatment could be delayed. Defendant did not ask for any medical treatment.
Iturriria put defendant in his patrol car and drove back to the collision scene to further investigate the matter. Defendant stayed in the parked patrol car while Iturriria conducted the investigation and confirmed that defendant was the driver of the truck. About 30 minutes later, Iturriria returned to the patrol car. Defendant was still handcuffed and in the back seat. Iturriria placed defendant under arrest as the driver of the truck and for being under the influence.
Iturriria then advised defendant of the Miranda warnings. Defendant said he understood his rights and agreed to answer questions about what happened. Iturriria testified that based on defendant's demeanor, he believed that defendant understood the Miranda advisements and he gave a valid waiver of his rights despite the forehead laceration. Defendant then answered questions about his conduct that day and the collision.
B. The court's ruling
At the suppression hearing, defense counsel argued defendant was detained when Officer Iturriria initially encountered him because Iturriria admitted that defendant was not free to leave. Defense counsel argued defendant should have received the Miranda warnings before Iturriria initially asked him what happened. Defense counsel further argued that even thought Iturriria subsequently advised defendant of the Miranda warnings, defendant was not capable of giving a knowing and voluntary waiver because of his head injury, and the circumstances in which a "mob" had chased him. Defense counsel argued that Iturriria was just guessing about defendant's condition and ability to waive his rights. Counsel argued defendant's waiver was invalid given "the mob scene, the head injury, and the transporting to the hospital."
The prosecutor replied that defendant was not subject to custodial interrogation when Officer Iturriria initially approached him and asked what happened. Iturriria was trying to determine what happened and whether defendant was involved in the collision, and he lacked sufficient information to perform an arrest. The prosecutor argued defendant's subsequent waiver was knowing and voluntary because Iturriria was trained to recognize head injuries, and there was no evidence defendant suffered the type of head injury which would have prevented him from giving an intelligent waiver.
The court noted that Iturriria found a mob of angry people surrounding defendant, and "is he supposed to walk over there and not ask what's going on or what happened, and what is he supposed to do?" Defense counsel agreed that Iturriria had to determine what was going on but argued defendant was in custody since Iturriria admitted defendant was not free to leave.
The court denied defendant's suppression motion. The court held defendant's initial statements were admissible, defendant was validly detained so Iturriria could investigate the matter, and his question about "what happened" was a preliminary investigatory question.
C. Custody
Defendant contends the court should have granted his motion to exclude his pre-Miranda confession because he was in custody when Officer Iturriria directed the bystanders to step back and asked defendant what happened.
An officer must advise a suspect of the Miranda warnings when that suspect is subject to custodial interrogation. (People v. Mickey (1991) 54 Cal.3d 612, 648; People v. Mosley (1999) 73 Cal.App.4th 1081, 1088.) The test for whether an individual is in custody is objective, i.e., " '[was] there a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.' [Citations.]" (Thompson v. Keohane (1995) 516 U.S. 99, 112; see also People v. Stansbury (1995) 9 Cal.4th 824, 830 (Stansbury); People v. Ochoa (1998) 19 Cal.4th 353, 401.) Where no formal arrest has taken place, we must determine "whether a reasonable person in defendant's position would have felt he or she was in custody." (Stansbury, supra, 9 Cal.4th at p. 830.) "A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." (Berkemer v. McCarty (1984) 468 U.S. 420, 442 (Berkemer),fn. omitted; Stansbury, supra, 9 Cal.4th at p. 830.)
"Our decisions make clear that the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." (Stansbury v. California (1994) 511 U.S. 318, 323; In re Joseph R. (1998) 65 Cal.App.4th 954, 960.) "An officer's knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned. [Citations.]" (Stansbury v. California, supra, 511 U.S. at p. 325.)
D. Investigatory detention
In contrast to a custodial situation, a person who is temporarily detained and subject to investigatory questioning is not necessarily in custody for purposes of Miranda. (Berkemer, supra, 468 U.S. at pp. 438-440; People v. Farnam (2002) 28 Cal.4th 107, 180; People v. Rivera (2007) 41 Cal.4th 304, 309; People v. Forster (1994) 29 Cal.App.4th 1746, 1754.) Indeed, Miranda itself held that "[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding.... In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present." (Miranda, supra, 384 U.S. at pp. 477-478, fn. omitted.)
"[T]he term 'custody' generally does not include 'a temporary detention for investigation' where an officer detains a person to ask a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. [Citation.]" (People v. Farnam, supra, 28 Cal.4th at p. 180.) An investigatory detention allows "the officer [to] ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." (Berkemer, supra, 468 U.S. at p. 439.)
An investigatory detention was at issue in People v. Clair (1992) 2 Cal.4th 629 (Clair),where several police officers were dispatched to an apartment to investigate a reported burglary. A rear kitchen window revealed signs of entry. An officer knocked, announced he was a police officer, and received no response. The officers were admitted into the apartment by the building manager. The defendant was under the covers in a bed in the bedroom. An officer approached the defendant with gun drawn and ordered him not to move. The officer asked the defendant who he was, if he had identification, and if he lived there. The defendant gave a false name and admitted he did not live there. The officer asked the defendant what he was doing there. The defendant said he had spent the previous night with a woman who lived in the apartment. The officer determined the resident did not know the defendant and arrested him for burglary. (Id. at pp. 648-649.)
Clair rejected the defendant's argument that he should have received Miranda warnings, and held he was not subject to custodial interrogation when the officer questioned him in the bedroom. Clair held the defendant was not in custody, and the incident was the type of " '[g]eneral on-the-scene questioning as to facts surrounding a crime' " that did not trigger the requirement for Miranda warnings. (Clair, supra, 2 Cal.4th at p. 679.) The defendant was only subject to "a temporary detention for investigation," and the officer "did no more than was permitted" to determine why the defendant was in that particular location. (Ibid.) The officer's decision to draw his gun was "altogether reasonable under the circumstances" and did not raise the detention to a custodial situation. (Ibid.)
Clair also held the defendant was not subject to "interrogation." (Clair, supra, 2 Cal.4th at p. 679.)
"To be sure, the term ' "refers not only to express questioning, but also to any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect." '
[Citations.] But it apparently does not extend to 'inquiries' --like those here--that are essentially 'limited to the purpose of identifying a person found under suspicious circumstances or near the scene of a recent crime[.]' [Citation.]" (Clair, supra, 2 Cal.4th at pp. 679-680.)
E. Defendant was not in custody
As applied to the instant case, we agree with the superior court's conclusion that defendant was not in custody when Officer Iturriria initially approached him, directed the bystanders to step back, and asked defendant what happened. Iturriria had responded to a dispatch of a "vehicle versus a pedestrian" collision. He knew an ambulance had been dispatched but had no idea of the seriousness of the victim's injuries.
Iturriria arrived at the collision scene and saw the truck, and bystanders told him the driver was down the street. At this point, however, Iturriria did not know the driver's name, whether he lived in the apartment complex, or even a basic physical description of him. Iturriria also did not know whether more than one vehicle was involved in the collision, the precise location where the truck hit the victim, or the cause or reasons why the truck hit the victim.
Iturriria found defendant further down the street, and testified defendant was surrounded by a "mob" of "dozens of people" from the neighborhood. The bystanders were yelling at defendant, kept him on the ground, and appeared to be threatening him. Iturriria ordered the crowd to step back so he could approach defendant.
In making his custody argument, defendant makes much of the "mob" atmosphere and the fact that he had been chased and attacked by an angry group of people. However, there is no evidence these bystanders were acting under color of law. Iturriria was the first officer to respond to the collision scene, and there is no evidence that any other law enforcement officer was present and participated in the chase. There is no evidence that Iturriria spoke to or questioned defendant while he was still surrounded, assaulted, restrained, and/or threatened by the bystanders. Iturriria did not engage in any statements or conduct which would have led an objective person to believe that Iturriria was going to leave him with the bystanders. To the contrary, Iturriria immediately ordered the bystanders to step back, they complied, and he thus gained control of the "mob" scene that had surrounded defendant.
Once the bystanders stepped back, Iturriria simply asked defendant what happened. Iturriria's brief and succinct question was highly appropriate under the circumstances, and virtually identical to the type of temporary detention and investigatory questions found permissible in Clair. Given the circumstances, an objective person could have interpreted Iturriria's question to mean that he wanted to know why the bystanders had surrounded defendant. Iturriria did not refer to the collision scene, the truck that had crashed into the mailboxes, or that a child had been injured. He did not draw his weapon or place defendant in handcuffs. He did not threaten or coerce defendant to demand an answer. While Iturriria thought defendant might be the driver, he admittedly knew that he had no facts to support that suspicion or to arrest him at that point. The bystanders could have chased an innocent resident of the apartment complex who was in the wrong place at the wrong time. Indeed, Amundson's son, who joined in the chase, admitted he lost sight of the truck's driver for about two minutes as they ran through the apartment complex.
Iturriria testified that when he approached defendant, he decided that defendant would be detained and he was not free to leave. However, Iturriria never informed defendant of his subjective intent to do so, and Iturriria never engaged in any conduct which would have led an objective person to believe he was not free to leave. Iturriria did not draw his gun, place defendant in handcuffs, or order him to get into the patrol car before he asked his initial question about what happened. To the contrary, Iturriria essentially rescued defendant from the bystanders and significantly reduced the hostility which had surrounded defendant.
We thus find that as in Clair, defendant was temporarily detained and he was not in custody when Officer Iturriria initially approached him, directed the bystanders to step away, and asked defendant what happened. Defendant was not subject to custodial interrogation, Iturriria was not obliged to advise him of the Miranda warnings, and his response to Iturriria's initial question was admissible.
F. Elstad and voluntariness
Defendant asserts that if his pre-Miranda statement should have been excluded, then his post-Miranda statement was also inadmissible because it was tainted by the previous Miranda violation. Even if we were to find that defendant was in custody when Iturriria initially approached him and asked what happened, we find that defendant's post-Miranda statement was admissible.
Defendant's challenge to his post-Miranda statement is based on Oregon v. Elstad (1985) 470 U.S. 298 (Elstad), which held that the "[f]ailure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda." (Elstad, supra, 470 U.S. at p. 307; People v. Bradford, supra, 14 Cal.4th 1005, 1033.)
However, Elstad further held that "[i]t is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made." (Elstad, supra, 470 U.S. at p. 309.) "[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement." (Id. at p. 314.)
As relevant to Elstad's analysis, a statement is involuntary or coerced if it is "obtained by physical or psychological coercion, by promises of leniency or benefit, or when the 'totality of circumstances' indicates the confession was not a product of the defendant's 'free and rational choice.' [Citations.]" (People v. Cahill (1993) 5 Cal.4th 478, 482, fn. 1.)
As applied to the instant case, even if we were to find that defendant's pre-Miranda confession was the product of custodial interrogation and inadmissible, defendant's post-Miranda confession was admissible and not tainted by any prior Miranda violation. Officer Iturriria did not engage in any coercive interrogation techniques when he initially spoke to defendant. Instead, he directed the bystanders to step away and simply asked defendant what happened. Even if defendant was in custody at that point and Miranda warnings should have been given, there is no evidence that his initial confession was involuntary or the result of coercive interrogation techniques.
In addition, there is no evidence to support defendant's claim that Iturriria engaged the prohibited technique of question first, advise later, in violation of Missouri v. Seibert (2004) 542 U.S. 600 (Seibert). Seibert criticized "a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession.... [T]he interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time.... Because this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda's constitutional requirement, we hold that a statement repeated after a warning in such circumstances is inadmissible." (Seibert, supra, 542 U.S. at p. 604.)
In contrast to Seibert, there is no evidence that Officer Iturriria subjected defendant to any type of calculated trickery when he initially approached defendant, directed the bystanders to step back, and asked defendant what happened. As we have explained, Iturriria's question was broad enough to encompass the entirety of the events, including why defendant was being chased and whether he was even involved in the collision. Once defendant gave his answer, Iturriria did not ask further questions but placed him in the patrol car, and drove him away from the area where the bystanders had gathered. Nearly 30 minutes later, Iturriria drove defendant away from the collision scene, advised defendant of the Miranda warnings, and asked detailed questions about the collision. He never referred back to defendant's initial statement but started the questioning anew, to determine exactly what had happened.
G. Defendant gave a knowing, intelligent, and voluntary waiver
Finally, defendant renews his argument that even if he was validly advised of the Miranda warnings in the patrol car, he was incapable of giving a knowing, intelligent, and voluntary waiver of his constitutional rights because Iturriria thought defendant was intoxicated, defendant had been chased and attacked by the group of bystanders, and defendant had suffered a head injury.
The inquiry as to whether a defendant's Miranda waiver is knowing, intelligent, and voluntary "has two distinct dimensions. [Citations.] First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the 'totality of the circumstances surrounding the interrogation' reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.]." (Moran v. Burbine (1986) 475 U.S. 412, 421; People v. Combs (2004) 34 Cal.4th 821, 845.) "[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will ... show that the defendant did not voluntarily waive his privilege." (Miranda, supra, 384 U.S. at p. 476.)
The California Supreme Court "has repeatedly rejected claims of incapacity or incompetence to waive Miranda rights premised upon voluntary intoxication or ingestion of drugs ...." (People v. Clark (1993) 5 Cal.4th 950, 988, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Breaux (1991) 1 Cal.4th 281, 301 (Breaux);see also People v. Loftis (1984) 157 Cal.App.3d 229, 236.) "Just as 'The mere fact of ministration of drugs does not establish an impairment of capacity so as to render a confession inadmissible' [citations], so too the mere fact of voluntary consumption of alcohol fails to establish such an impairment." (People v. Hendricks (1987) 43 Cal.3d 584, 591.)
As for physical injuries, a rather extreme factual situation was addressed in People v. Jackson (1989) 49 Cal.3d 1170 (Jackson), where the court found the defendant was capable of giving a knowing, intelligent and voluntary waiver. An officer tried to take the defendant into custody, but the defendant violently resisted him and managed to take possession of the officer's shotgun from the patrol car. The defendant shot and killed the officer, and then attempted to shoot the backup officers, who released a police dog in an attempt to subdue him. The defendant hit the police dog with the shotgun, but the wounded dog continued to charge and attack the defendant. The defendant was finally taken into custody after another violent physical confrontation with the arresting officers. The defendant was taken to the jail and transferred to the county hospital after not showing signs of verbal responsiveness. A few hours later, he showed the first signs of verbal responsiveness and was questioned at that time for identification purposes by the officer who was assigned to guard him. Two detectives later interviewed the defendant at the jail hospital. The defendant had been tied down and was extensively bandaged. The detectives advised him of the Miranda warnings. He agreed to talk, said he did not want an attorney, and he gave a statement. The defendant moved to suppress these statements, and claimed he lacked capacity to waive his rights because of his physical and mental condition after the confrontation with the officers and the dog, and his prior ingestion of drugs. (Id. at pp. 1181-1182, 1185-1186.)
Jackson rejected the defendant's claim that he lacked capacity to waive his rights:
"The claim of incapacity or incompetence is premised on defendant's physical and mental condition because of the confrontation with the officers and police dog and due to the ingestion of drugs. However, there is nothing in the record to indicate that defendant did not understand [the detective]. Defendant's physical circumstances--the fact that he was in restraints and bandaged--apparently did not prevent him from participating in short, lucid interviews (10 or 12 minutes in each instance) during which he attempted to 'cover himself,' indicating (falsely) where he had received his wounds and where he had learned of the killing of the officer. [The detective] testified that defendant's responses seemed normal and that he ... did inquire whether defendant had been medicated. The cold record supports a finding of voluntariness.
"Insofar as defendant is claiming that he was incapacitated to waive his rights because of his ingestion of PCP and other drugs, he also cannot prevail. '[T]he mere fact of voluntary consumption of alcohol does not establish an impairment of capacity,' and here ... the evidence showed that defendant was able to comprehend and answer all the questions that were posed to him. [Citations.]" (Jackson, supra, 49 Cal.3d at p. 1189; see also Breaux, supra, 1 Cal.4th at pp. 299-301.)
As applied to this case, we find that defendant's waiver of the Miranda advisements was knowing, intelligent, and voluntary. The fact that Iturriria suspected defendant was intoxicated did not render defendant incapable of validly waiving his rights. Iturriria testified that defendant walked to the patrol car without assistance, he was oriented, he understood the questions, and he gave appropriate responses.
As for defendant's head injury, Iturriria testified defendant was bleeding from a "laceration" on his forehead. Iturriria was a certified emergency medical responder, a licensed paramedic, and trained in the recognition and treatment of head trauma. He testified that defendant's laceration was not a medical emergency, there were no indications of head trauma, and defendant never asked for medical assistance. Iturriria testified that based on defendant's demeanor, he believed that defendant understood the Miranda advisements and he gave a valid waiver because "the mechanism of that injury was not so that I felt that [defendant] ... suffered a traumatic head condition where it would alter his consciousness." After defendant waived his rights, he immediately started to answer questions and never hesitated to respond to Iturriria's inquires. His answers were direct, coherent, and responsive. There is no evidence that the laceration impaired his ability to waive his Miranda rights. We thus conclude defendant's waiver was knowing, intelligent, and voluntary.
II. Defendant's confrontation rights were not violated
As set forth in the factual summary, Officer Iturriria initially received a dispatch that a white truck might have been involved in the collision. Iturriria testified, without objection, that he questioned eyewitnesses at the collision scene, some people had seen a white truck pull over and get out of the way of defendant's truck, but no one saw the white truck hit defendant's truck or play a role in the collision.
On appeal, defendant contends Iturriria's testimony about the white truck was inadmissible testimonial hearsay admitted in violation of his Sixth Amendment right to confront and cross-examination witnesses, as set forth in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). In the alternative, defendant asserts defense counsel was prejudicially ineffective for failing to raise a Crawford objection to Iturriria's testimony, because it undermined defendant's defense theory that the white truck hit defendant's truck and triggered the collision.
As we will explain in section V, post, defendant filed a Pitchess motion to obtain evidence to impeach Officer Iturriria's credibility. We will find that the denial of the Pitchess motion was not prejudicial, and explain that there was independent evidence, completely separate and apart from Officer Iturriria's testimony, that a white truck was not involved in the collision.
We will review the applicable legal principles, the factual background for defendant's evidentiary contentions, and then conclude that any Sixth Amendment violation was necessarily harmless in this case.
A. Crawford
In Crawford, the United States Supreme Court held that the admission of testimonial hearsay statements against a criminal defendant violates the Sixth Amendment unless the witness is unavailable at trial and the defendant has had a prior opportunity for cross-examination, even if those statements fall within an exception to the hearsay rule. (Crawford, supra, 541 U.S. at pp. 59, 68-69.)
The court subsequently expanded on the concept by explaining that "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis v. Washington (2006) 547 U.S. 813, 822, fn. omitted; People v. Romero (2008) 44 Cal.4th 386, 422.)
Crawford further held that the Sixth Amendment does not bar the admission of extrajudicial statements that are not offered for their truth and are relevant to prove a disputed issue. (Crawford, supra, 541 U.S. at p. 59, fn. 9; People v. Mitchell (2005) 131 Cal.App.4th 1210, 1224-1225.) "Crawford was concerned with the substantive use of hearsay evidence that was admitted within an exception to the hearsay rule. It did not suggest that the confrontation clause was implicated by admission of hearsay for nonhearsay purposes. In fact, Crawford expressly stated that the confrontation clause 'does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.' [Citation.] [I]f hearsay is admitted for a nonhearsay purpose, it does not turn upon the credibility of the hearsay declarant, making cross-examination of that person less important...." (People v. Cooper (2007) 148 Cal.App.4th 731, 747.) Crawford also held that states may apply their own laws to non-testimonial hearsay. (Crawford, supra, 541 U.S. at p. 68.)
With these standards in mind, we turn to the factual background for defendant's Sixth Amendment contentions.
B. Iturriria's direct examination testimony
Defendant's Sixth Amendment contentions are based on Officier Iturriria's testimony that he interviewed eyewitnesses at the collision scene about whether a white truck was involved, and none of the witnesses said that such a vehicle was involved in a collision with defendant's truck. Defendant argues Iturriria's statements were testimonial hearsay and inadmissible under Crawford.
However, it is important to review the context under which Iturriria testified about his investigation of the possible involvement of a white truck. On direct examination, Iturriria testified that as he initially responded to the collision scene, he received a dispatch that the possible suspect's vehicle was still at the scene, and a white Nissan Titan pickup was also involved and still outstanding.
Iturriria further testified that when he asked defendant numerous questions about the collision, he asked defendant if he knew anything about a white pickup truck, or if he was involved in an accident with a white truck. Defendant said, "[N]o."
C. Iturriria's cross-examination testimony
On cross-examination, defense counsel extensively questioned Iturriria as to whether he thoroughly investigated all possible causes of the collision. In the course of these questions, defense counsel pointed out that Iturriria's incident report failed to mention the possible involvement of the white truck in the collision. Iturriria conceded he did not mention the white truck in his report, but explained that he never saw a white truck at the collision scene, Amundson, the eyewitness, said a white truck was not involved, and defendant said he was not hit by a white truck.
D. Iturriria's redirect examination testimony
During the prosecutor's redirect examination, she extensively questioned Iturriria about the nature and context of his investigation at the collision scene, in order to respond to defense counsel's implication that Iturriria did not properly investigate the white truck's possible involvement. In the course of these questions, Iturriria explained that he did not mention the white truck in his incident report because Mark Heredia, an eyewitness to the collision, said a white truck was not involved. Iturriria further testified that he spoke to Jordy's father and other witnesses at the scene, and no one mentioned a white truck being involved in the collision.
Heredia did not appear at trial, but Jordy's father testified and was available for cross-examination.
E. Recross-examinaiton
On recross-examination, defense counsel again questioned Iturriria about whether he sufficiently investigated the white truck's existence and possible involvement in the collision. Iturriria again testified none of the witnesses said anything about a white truck being involved in the collision.
F. Other trial evidence about the white truck
There was also direct evidence about the white truck, based on the testimony of Amundson, the eyewitness, that she saw a white truck swerve out of the way of defendant's truck just before the collision. Amundson testified the white truck pulled over to the side of the road and she was sure it never hit defendant's truck. As Amundson tried to help the victim, she noticed the white truck was still parked on the side of the road and the driver's side door was open.
Anna Cruz, the apartment manager, was not an eyewitness to the collision and only went to the collision scene after defendant ran away. However, Cruz testified that she saw a white truck parked at an angle, close to the scene, as if it had abruptly stopped to check out what was going on. Cruz testified the white truck took off and "fled the scene." Cruz testified she did not inspect defendant's truck at the scene, but she later picked up the truck at the tow yard and insisted the rear bumper was damaged and there was white paint on it. In contrast, CHP Officer Petty testified he examined defendant's truck at the collision scene and there was no visible damage to the rear bumper.
As explained ante, Cruz testified she communicated with defendant when he was in jail, she cared about him, and she did not want anything bad to happen to him because of the collision.
G. Iturriria's testimony was not inadmissible under Crawford
Defendant contends that Iturriria's testimony about his investigation of the white truck involved testimonial hearsay because he testified about the statements of witnesses who did not appear at trial, and the admission of that evidence violated his Sixth Amendment rights and Crawford.
As we have set forth ante, however, defendant never raised any confrontation objections during Iturriria's testimony on this issue. An objection that the introduction of evidence violates the defendant's rights under the confrontation clause must be timely asserted or is forfeited on appeal. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19; People v. Burgener (2003) 29 Cal.4th 833, 869; see also Melendez-Diaz v. Massachusetts (2009) _ U.S. _ [129 S.Ct. 2527, 2534, fn. 3; 2541 (Melendez-Diaz))
In the alternative, defendant argues defense counsel was prejudicially ineffective for failing to object because Iturriria testified to inadmissible testimonial hearsay, and the introduction of that evidence was prejudicial because it undermined defendant's defense theory that the white truck hit his truck and triggered the collision with the victim. "To establish ineffective assistance, defendant bears the burden of showing, first, that counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel's error, it is reasonably probable that the verdict would have been more favorable to him. [Citations.]" (People v. Hawkins (1995) 10 Cal.4th 920, 940, overruled on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110 and People v. Blakeley (2000) 23 Cal.4th 82, 89.)
Generally, the failure to object is considered a matter of trial tactics "as to which we will not exercise judicial hindsight. [Citation.]" (People v. Kelly (1992) 1 Cal.4th 495, 520.) There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citation]." (Strickland v. Washington (1984) 466 U.S. 668, 689; People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
Defendant's Crawford arguments are meritless. First, Iturriria's testimony about the statements made by Amundson and Jordy's father about the white truck did not implicate Crawford, since both people testified at trial and were available for cross-examination. Second, Iturriria did not testify about the investigation of the white truck for the truth of the matter. Instead, Iturriria's testimony about the eyewitness hearsay statements was the result of defense counsel's attempt to undermine the credibility of his investigation. Defense counsel sought to show that Iturriria did not thoroughly investigate whether a white truck triggered defendant's collision, and that he omitted any mention of the white truck in his collision report. Indeed, it was defense counsel who elicited Iturriria's testimony that he talked to unidentified "witnesses" who said they did not see a white truck involved in the collision. Defense counsel repeatedly questioned Iturriria's decision not to include anything about the white truck or the witnesses' statements in his incident report, and Iturriria repeatedly explained there was nothing to report since no one had seen the truck. The record strongly implies that defense counsel made the tactical decision to undermine Iturriria's testimony and raise the inference that other aspects of Iturriria's report were not reliable.
Defendant points to Iturriria's redirect examination testimony about the hearsay statements of Mark Heredia, and argues such evidence constituted testimonial hearsay that was inadmissible under Crawford. Iturriria testified that Heredia said the white truck was not involved in the collision. Heredia did not testify and was not available for cross- examination. However, Heredia's testimony did not implicate Crawford. As we have explained, "if hearsay is admitted for a nonhearsay purpose, it does not turn upon the credibility of the hearsay declarant, making cross-examination of that person less important...." (People v. Cooper, supra, 148 Cal.App.4th at p. 747.) Crawford held that the Sixth Amendment does not bar the admission of extrajudicial statements that are not offered for their truth and are relevant to prove a disputed issue. (Crawford, supra, 541 U.S. at p. 59, fn. 9; People v. Mitchell (2005) 131 Cal.App.4th 1210, 1224-1225.)
In this case, the prosecutor used redirect examination to try and rehabilitate Iturriria's credibility as to whether he thoroughly investigated whether a white truck was involved in the collision. Iturriria's redirect examination testimony was not being introduced for the truth of the matter, but to explain what steps he took to investigate the existence of the white truck, and why he did not include that investigation in his collision report. Thus, the prosecutor elicited Iturriria's testimony on the disputed issue on the adequacy of his investigation. The record strongly implies that defense counsel did not object to Iturriria's testimony because he had raised the credibility of the investigation, the prosecutor was trying to rehabilitate the witness, and the testimony was admitted for a nonhearsay purpose.
H. Harmless error
Even if Iturriria's testimony was testimonial and admitted for the truth of the matter, and defense counsel should have objected, any error is necessarily harmless and not prejudicial. As to ineffective assistance, defendant must establish that, absent counsel's error, it is reasonably probable that the verdict would have been more favorable to him. (People v. Hawkins, supra, 10 Cal.4th 920, 940.) In addition, we note that confrontation clause violations are subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681 ["an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt"].)
The admission of the entirety of Iturriria's testimony, as set forth ante, was harmless under any standard. Defendant argues Iturriria's reference to hearsay statements, that no one saw a white truck, was prejudicial and damaging to the defense theory that the white truck hit the back of defendant's truck and triggered the collision. We note that defendant introduced evidence about the white truck through Anna Cruz's testimony, particularly her explanation that she saw white paint on the bumper of defendant's truck when she picked it up from the tow yard. However, Cruz was not an eyewitness to the collision, and Officer Petty testified the truck's rear bumper was not damaged when he inspected it at the collision scene. Amundson, the eyewitness, testified that she saw a white truck pull over to the side of the road to get out of the way of defendant's swerving truck, and she was sure it did not hit defendant's truck.
Defendant also undermined his own defense theory because he told Iturriria that a white truck was not involved in the collision. There is no authority for excluding a defendant's own statements under the confrontation clause-not even when made to a police officer in response to questioning and therefore testimonial under Crawford. (See, e.g., U.S. v. Lopez (1st Cir. 2004) 380 F.3d 538, 546, fn. 6.) Defendant acknowledges he made this statement but again argues his pretrial statements were involuntary and inadmissible. As we explained in section I, ante, the entirety of defendant's pretrial statements were admissible.
III. Evidence about calibration of the PAS test device
Defendant contends his Sixth Amendment confrontation rights were violated when the prosecution introduced evidence about the results of the PAS tests. Defendant asserts that while Officer Iturriria testified about administering the test, the prosecution failed to call the officer who performed the calibration tests on the PAS device. Defendant asserts the absence of that testimony violated his Sixth Amendment rights as set forth in Melendez-Diaz.
A. Background
CHP Officer Vaughn Cain testified he was in charge of ensuring that the PAS device used by Iturriria was properly calibrated, and he maintained the calibration records. Cain testified CHP Officer Reed worked with him, and Reed was also trained on CHP procedures.
Cain reviewed the calibration records and testified that on September 3, 2008, Officer Reed performed an accuracy test on the PAS device that Iturriria used to test defendant, and the device was within policy limits for proper calibration. Itrurriria administered the PAS tests on defendant on September 14, 2008.
The prosecution asked Officer Cain additional questions about the calibration records. Defendant objected on foundational grounds because Cain did not perform the calibration tests and did not watch Reed perform the tests. The court overruled the objection, held the prosecution laid the foundation for admission of the calibration log as business records, and Cain was a recognized custodian of the records.
Cain then testified that he personally tested the accuracy of the PAS device on September 17, 2008, and the device was still within policy limits for proper calibration.
The prosecution moved to introduce the calibration log into evidence. Defendant objected. The court overruled the objection and found the proper foundation had been laid to admit the log as a business record. (Evid. Code, §§ 1270, 1271.)
In the midst of trial, after Officer Cain's testimony, the United States Supreme Court decided Melendez-Diaz. Thereafter, defendant moved to strike Officer Cain's testimony and argued Reed had to appear at trial to testify about the calibration of the PAS device pursuant to Melendez-Diaz. The court denied the motion and found Melendez-Diaz did not prohibit admissible hearsay testimony about calibration evidence. Defendant later moved for a mistrial because of the calibration evidence and the court denied the motion.
B. Analysis
Defendant contends the court should have excluded the PAS test results because the officer who calibrated the PAS device did not testify and his failure to appear violated defendant's Sixth Amendment confrontation rights pursuant to Crawford and Melendez-Diaz.
In Melendez-Diaz, the United States Supreme Court held that documentary evidence stating that certain contraband tested positive for cocaine constituted "testimonial" evidence and was inadmissible in the absence of the trial testimony of the analysts who performed such tests, pursuant to the confrontation clause of the Sixth Amendment. (Melendez-Diaz, supra, 129 S.Ct. at p. 2532.) The petitioner was found in possession of bags containing a substance that resembled cocaine. (Id. at p 2530.) The prosecution introduced three notarized "certificates of analysis" which showed the results of forensic analysis performed on the seized substances. The certificates reported the weight of the seized bags and that the substances were examined and found to contain cocaine. The certificates complied with state law and were sworn to before a notary public by analysts from the state's crime laboratory, but no analysts testified at trial. (Id. at pp. 2530-2531.) The petitioner objected to the certificates and argued the evidence was testimonial and violated his Sixth Amendment rights under Crawford, but the trial court overruled the objection and held the analysts who tested the contraband were not required to appear at trial. (Melendez-Diaz, supra, at p. 2531.)
Melendez-Diaz held the admission of the certificates, in the absence of the trial testimony of the analysts who tested the contraband, violated petitioner's Sixth Amendment rights because there was "little doubt" the certificates fell "within the 'core class of testimonial statements' " subject to the Sixth Amendment restrictions described in Crawford. (Melendez-Diaz, supra, 129 S.Ct. at p. 2532.) "The 'certificates' are functionally identical to live, in-court testimony, doing 'precisely what a witness does on direct examination.' [Citation.]" (Ibid.)While state law described the documents as " 'certificates,' "Melendez-Diazheld they were "quite plainly affidavits" and " ' "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial ...." ' [Citation.]" (Ibid.)Moreover, the "sole purpose" of the affidavits under state law "was to provide 'prima facie evidence of the composition, quality, and the net weight' of the analyzed substance [citation]." (Ibid.)
The California Supreme Court has granted review in a series of cases to address the nature and extent of the application of Melendez-Diaz in this state. (See, e.g., People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, 98 Cal.Rptr.3d 390, review granted December 2, 2009, S176213; People v. Dungo (2009) 176 Cal.App.4th 1388, 98 Cal.Rptr.3d 702, review granted December 2, 2009, S176886; People v. Lopez (2009) 177 Cal.App.4th 202, 98 Cal.Rptr.3d 825, review granted December 2, 2009, S177046; People v. Gutierrez (2009) 177 Cal.App.4th 654, 99 Cal.Rptr.3d 369, review granted December 2, 2009, S176620; People v. Miller (2010) 187 Cal.App.4th 902, 114 Cal.Rptr.3d 629, review granted November 10, 2010, S186758; see People v. Smith (2011) 193 Cal.App.4th 1.)
In a dissenting opinion in Melendez-Diaz, Justice Kennedy addressed the impact of the majority opinion on the admissibility of calibration evidence:
"Consider the independent contractor who has calibrated the testing machine. At least in a routine case, where the machine's result appears unmistakable, that result's accuracy depends entirely on the machine's calibration. The calibration, in turn, can be proved only by the contractor's certification that he or she did the job properly. That certification appears to be a testimonial statement under the Court's definition ...." (Melendez-Diaz, supra, 129 S.Ct. at p. 2545, (Kennedy, J., dissenting), italics added.)
Melendez-Diaz's majority opinion replied to Justice Kennedy's specific concern:
"Contrary to the dissent's suggestion [citation], we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case. While the dissent is correct that '[i]t is the obligation of the prosecution to establish the chain of custody,' [citation], this does not mean that everyone
who laid hands on the evidence must be called. '[G]aps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.' It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records. [Citation.]" (Melendez-Diaz, supra, 129 S.Ct. at p. 2532, fn. 1, first italics added, second italics in original.)
In light of Melendez-Diaz, several jurisdictions have recognized that calibration and maintenance records of breath test machines and/or radar devices are nontestimonial for the purposes of the confrontation clause. (See, e.g., U.S. v. Bacas (E.D.Va. 2009) 662 F.Supp.2d 481, 484-485 (Bacas); State v. Bergin (Or. 2009) 217 P.3d 1087, 1089-1090; People v. Lent (N.Y. 2010) 908 N.Y.S.2d 804, 809-809.)
The United States Supreme Court recently decided Bullcoming v. New Mexico (June 23, 2011) __ U.S. __ [131 S.Ct. 2705, at pp. 2710, 2712], and held that admission of a forensic laboratory report, certifying that the defendant's blood-alcohol level exceeded the threshold for the aggravated offense of driving while intoxicated, violated his right of confrontation, where a substitute analyst rather than the analyst who prepared and certified the report testified regarding the report's validity. Bullcoming did not address Melendez-Diaz's discussion of chain of custody and accuracy issues.
For example, in Bacas, supra, 662 F.Supp.2d 481, the defendant challenged his conviction for speeding on the grounds the prosecution failed to produce the technician who tested the accuracy of certain tuning forks. The defendant argued the technician's presence at trial was required under the Sixth Amendment because the tuning forks were used by the arresting officer to calibrate the radar that detected his driving speed. In other words, the defendant "sought live testimony about the test applied to the [subject] equipment to show that it performed correctly. [Citation.]" (Id. at p. 484.)
Bacas held: "Collateral facts that do not speak to a defendant's guilt or innocence have been excepted from Sixth Amendment protection. [Citation.] Neutral statements that relate only to the operation of a machine constitute such collateral facts. [Citations.] [¶] Unlike the certificates at issue in Melendez-Diaz, in the instant case [the calibration test results] propound neutral information relating only to the proper operation of the radar equipment. Such calibration results do not pertain to any particular defendant or specific case. [Citation.]" (Bacas, supra, 662 F.Supp.2d at p. 485, fn. omitted.) Therefore, they "lack the essential 'primary purpose' of 'establishing] or prov[ing] past events potentially relevant to later criminal prosecution' that would render them 'testimonial.' [Citation.]" (Ibid.)
We agree with Bacas and the other jurisdictions that Officer Cain's testimony about the calibration of the PAS device was not testimonial hearsay pursuant to Melendez-Diaz. However, even if the evidence was testimonial, any error is necessarily harmless. As we have explained, confrontation clause violations are subject to harmless error analysis. (Delaware v. Van Arsdall, supra, 475 U.S. 673, 681.) Defendant's blood-alcohol level was 0.10 percent one hour after the collision, and the criminalists who performed the actual blood tests appeared at trial and were available for cross-examination.
IV. Testimony about retrograde extrapolation
Defendant's next argument is based on the testimony of Robert Kane, the criminalist who tested defendant's blood sample. As we will explain, Kane also testified to his opinion about retrograde extrapolation-that based on certain hypothetical facts about a person, and that person's blood-alcohol level at a certain time, then that person's blood-alcohol level could have been a certain percentage at an earlier time when that person was actually driving. Defendant argues Kane's expert testimony about retrograde extrapolation lacked foundation and should have been excluded.
A. "Retrograde extrapolation"
We begin with the concept and admissibility of "retrograde extrapolation" evidence. In count II, defendant was charged with driving while having a blood-alcohol level of 0.08 percent or more causing bodily injury (Veh. Code, § 23153, subd. (b)). This offense "prohibits driving a vehicle with a blood-alcohol level" above the legal limit; it "does not prohibit driving a vehicle when a subsequent test shows a level" above the legal limit. (Burg v. Municipal Court (1983) 35 Cal.3d 257, 266, fn. 10.) The crucial issue is whether "the defendant drove a vehicle at a time when his or her blood-alcohol level was 0.08 percent or higher. Since rarely, if ever, would a blood-alcohol test be performed while the defendant was driving, '[c]ircumstantial evidence will generally be necessary to establish the requisite blood-alcohol level called for by the statute.' [Citation.] And a chemical test 'will, obviously, be the usual type of circumstantial evidence [Citation.]" (People v. Warlick (2008) 162 Cal.App.4th Supp. 1, 7, (Warlick), italics in original.)
Vehicle Code section 23152, subdivision (b) states a permissive inference that a jury may, but is not required to, conclude that a defendant's blood-alcohol level was in excess of legal limits if a chemical test taken within three hours after the driving shows the person had a blood-alcohol level of 0.08 percent or more. (People v. Thompson (2006) 38 Cal.4th 811, 826; People v. Beltran (2007) 157 Cal.App.4th 235, 240-241; Warlick, supra, 162 Cal.App.4th Supp. at p. 7.)
"Retrograde extrapolation" is a method of introducing expert opinion, based on circumstantial evidence, to determine someone's blood-alcohol level at the time that person was driving. (See, e.g., Warlick, supra, 162 Cal.App.4th Supp. at p. 7.) " '[R]etrograde extrapolation' is nothing more than the prosecutorial version of the ' " 'rising blood-alcohol" defense.' [Citation.] Each starts with the defendant's blood-alcohol level at the time of chemical test and relies on circumstantial evidence regarding the direction of change to convince the trier of fact that the level was different-significantly higher or lower-at the time of driving." (Ibid., fn. 2.)
The California Supreme Court has recognized the validity and admissibility of expert testimony on retrograde extrapolation. (See, e.g., People v. Clark, supra, 5 Cal.4th at p. 993; Thompson, supra, 38 Cal.4th 811, 826 (maj. opn. of Baxter, J.); id. at p. 834 (dis. opn. of Werdegar, J.).)
"It is common ... for experts to take into account the metabolization rate of a substance and extrapolate from the amount of a substance in a blood sample to arrive at an opinion regarding the amount of the substance in the blood at a critical point in time." (People v. Clark, supra, 5 Cal.4th at p. 993.)
The California Supreme Court has cautioned that the fact that such extrapolations can be speculative goes to the weight rather than the admissibility of such testimony. (Thompson, supra, 38 Cal.4th 811, 826 (maj. opn. of Baxter, J.); see id. at p. 834 (dis. opn. of Werdegar, J.).) " '[T]here are numerous variations such as weight, or time and content of last meal which may affect the rate at which the alcohol dissipates.' [Citations.]" (Id. at p. 826.)
With these principles in mind, we turn to the testimony in this case about retrograde extrapolation and defendant's appellate contentions.
B. The criminalist's testimony
Over defendant's objections, Robert Kane, the criminalist who conducted one of the blood-alcohol tests on defendant's blood sample, also testified about retrograde extrapolation. Kane testified about his training and experience to determine what a person's blood-alcohol level was at the time that person was driving. He could reach this opinion based on information including the person's gender, weight, drinking pattern, the PAS test results, and the strength of the person's breath sample into the PAS device.
Kane was asked to make a calculation as to a person's blood-alcohol level at 6:00 p.m., based on a male subject who weighed 110 pounds, and had pattern of drinking 9 to 10 beers from 2:00 p.m. to 5:30 p.m., with specific PAS test results and blood-alcohol levels.
Kane testified that based on the hypothetical, he determined that the person's blood-alcohol level would have been between 0.110 percent 0.120 percent at 6:00 p.m. Kane made one calculation based on the person being skinny, and one on the person being heavy.
Kane further explained that when he "retrograded it back" to 2:00 p.m., he estimated the subject had 2.9 to 3.8 beers in his system when he was driving, and he questioned whether the subject actually consumed 9 or 10 beers.
Defense counsel extensively cross-examined Kane on his calculations and underlying assumptions. Kane testified that based on the margin of error, the blood test, which was taken an hour after defendant was arrested, could have ranged from 0.105 to 0.095 percent. The blood sample might indicate a rising blood-alcohol content, depending on drinking pattern, tolerance, food consumption, and absorption rate. Kane did not know if his subject ate anything, aside from what he had been told to use in his calculations. Kane further explained that the subject's blood-alcohol level would not be affected by whether he was running or sprinting.
C. Analysis
Defendant argues the court should have excluded Kane's testimony on retrograde extrapolation because his opinions were based "on guess, surmise, and conjecture" and lacked sufficient foundation. Defendant points to Kane's testimony that in order to calculate retrograde extrapolation, he needed factors such as gender, weight, drinking pattern, food ingested, the results of the PAS test, and the blood-alcohol test. Defendant insists that Kane guessed or had erroneous information about these factors, particularly that Kane rejected defendant's statement that he had 9 or 10 beers, Kane admitted there could have been variations in the PAS test results, he did not know defendant's tolerance, and he thought defendant had not eaten anything.
As we have explained, expert testimony on retrograde extrapolation of a person's blood-alcohol level is admissible evidence. (Warlick, supra, 162 Cal.App.4th Supp. at p. 7.) " '[T]here are numerous variations such as weight, or time and content of last meal which may affect the rate at which the alcohol dissipates.' [Citations.]" ( People v. Thompson, supra, 38 Cal.4th at p. 826.) The speculative nature of the evidence goes to the weight rather than the admissibility of such testimony. (Id. at p. 826 (maj. opn. of Baxter, J.); see id. at p. 834 (dis. opn. of Werdegar, J.).)
Contrary to defendant's contentions, Kane's expert testimony was properly admitted and based on a sufficient foundational basis. Defendant's challenges to Kane's testimony are addressed to the weight rather than the admissibility of the evidence. Kane explained his training and experience in using retrograde extrapolation to calculate a person's blood-alcohol level at the time the person was driving. He explained the factors that he needed to consider to make such a calculation, and that his opinion was based on a hypothetical using the person's gender, weight, drinking pattern, the PAS test results, what kind of PAS device was used, the strength of the person's breath sample into the PAS device, whether the person had eaten, and the blood-alcohol test results.
At trial, defense counsel extensively cross-examined Kane on nearly every fact underlying his calculation and expert opinion. On appeal, defendant asserts Kane's opinion should have been excluded because it was based on the incorrect fact that he had not eaten anything. However, defendant told Iturriria that he had been drinking at Mercado Latino for several hours, and he did not know the last time he ate or what he ate. Given the nature and circumstances of defendant's statement, it was not unreasonable for Kane to make his calculation based on the assumption that the subject had not eaten.
As for the actual number of beers consumed, Kane testified that he made his calculation based on the drinking pattern and blood-alcohol and PAS test results, and extrapolated back and believed the subject consumed less than 9 or 10 beers. Kane was cross-examined on this point and this factor went to the weight rather than the admissibility of his testimony.
Defendant complains that Kane admittedly did not know his tolerance to alcohol. When faced with defense counsel's vague hypothetical, however, Kane explained that a person's tolerance was relevant to determine if there was a rising blood-alcohol level, and counsel failed to provide that factor for purposes of the hypothetical. In addition, Kane testified it was not necessary to know the person's alcohol tolerance to give his opinion about the retrograde extrapolation calculation.
Finally, even if the trial court erred when it admitted Kane's testimony, any error was harmless given the results of the blood-alcohol tests, based on the blood sample being taken from defendant within one hour of the collision. The jury was instructed about the permissive inference as to count II, driving while having a blood-alcohol level of 0.08 percent or more proximately causing bodily injury, that a person was driving with a blood-alcohol content of 0.08 percent or more if a chemical test taken within three hours after drinking showed the person's blood-alcohol content was 0.08 percent or more. The jury was also instructed about the permissible inference as to count I, driving under the influence of alcohol proximately causing bodily injury-that if a person's blood-alcohol level was 0.08 percent or more at the time of the chemical analysis, the jury may infer the person was under the influence of an alcoholic beverage at the time of the alleged offense. (Veh. Code, § 23610, subd. (a)(3).) V. Denial of defendant's Pitchess motion
Defendant contends the court abused its discretion when it denied his pretrial Pitchess motion for discovery of Officer Iturriria's personnel records. Defendant requests this court review the confidential files that were before the superior court when it denied his Pitchess motion.
As we will explain, post, the superior court reviewed eight confidential files at the in camera Pitchess hearings in this case; three of those eight confidential files were later subject to routine destruction by the custodian after the superior court denied defendant's Pitchess motion.
We will review the legal standards for disclosure under Pitchess, explain the procedural history of this case, and then address the issues raised by the routine destruction of three of the eight confidential files which were reviewed by the superior court at the in camera Pitchess hearings.
A. Pitchess motions
We begin with the well-settled standards for disclosure of confidential personnel records pursuant to Pitchess, which established that "a criminal defendant could 'compel discovery' of certain relevant information in the personnel files of police officers by making 'general allegations which establish some cause for discovery' of that information and by showing how it would support a defense to the charge against him." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019 (Warrick);Pen. Code, §§ 832.7, 832.8; Evid. Code, §§ 1043-1045.)
"To initiate discovery, the defendant must file a motion supported by affidavits showing 'good cause for the discovery,' first by demonstrating the materiality of the information to the pending litigation, and second by 'stating upon reasonable belief' that the police agency has the records or information at issue. [Citation.] This two-part showing of good cause is a 'relatively low threshold for discovery.' [Citation.]" (Warrick, supra, 35 Cal.4th at p. 1019.)
"If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance. [Citations.] The trial court may not disclose complaints more than five years old, the "conclusions of any officer" who investigates a citizen complaint of police misconduct, or facts 'so remote as to make [their] disclosure of little or no practical benefit.' [Citations.] Typically, the trial court discloses only the names, addresses, and telephone numbers of individuals who have witnessed, or have previously filed complaints about, similar misconduct by the officer. [Citation.] That practice 'imposes a further safeguard to protect officer privacy where the relevance of the information sought is minimal and the officer's privacy concerns are substantial.' [Citation.]" (Warrick, supra, 35 Cal.4th at p. 1019, italics added.)
"[T]he standard governing discovery of personnel records is not whether the information discovered is ultimately admissible at trial. '[Evidence Code] [s]ection 1043 has no such precondition. Quite to the contrary, the Legislature has determined that the moving party must show only that the personnel records are material to the subject matter in the pending litigation.' [Citation.]" (Larry E. v. Superior Court (1987) 194 Cal.App.3d 25, 31-32, italics added by Pierre C. v. Superior Court (1984) 159 Cal.App.3d 1120, 1122-1123.) When there is "discoverable information in the officer's file," defendant should be "given an opportunity to determine if the information would have led to any relevant, admissible evidence that he could have presented at trial. [Citation.]" (People v. Hustead (1999) 74 Cal.App.4th 410, 419.)
When the court finds good cause and conducts an in camera review pursuant to Pitchess, it must make a record that will permit future appellate review. (People v. Mooc (2001) 26 Cal.4th 1216, 1229-1230 (Mooc); People v. Guevara (2007) 148 Cal.App.4th 62, 69.) The court may preserve the record by either copying the documents and placing them in a confidential file, preparing a sealed list of the documents it reviewed, or "simply state for the record what documents it examined" and seal that transcript. (Mooc, supra, 26 Cal.4th at pp. 1229.)
The trial court has broad discretion in ruling on both the good cause and disclosure components of a Pitchess motion, and its ruling will not be disturbed absent an abuse of that discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086; People v. Hughes (2002) 27 Cal.4th 287, 330.)
On appeal, this court is required to review the "record of the documents examined by the trial court" and determine whether the trial court abused its discretion in refusing to disclose the contents of the officer's personnel records pursuant to Pitchess. (Mooc, supra, 26 Cal.4th at p. 1229; People v. Hughes, supra, 27 Cal.4th 287, 330.) Defendant is entitled to "meaningful appellate review" of the confidential files which were before the superior court when it denied his Pitchess motion for disclosure. (Mooc, supra, 26 Cal.4th at p. 1228.)
If the appellate court determines that the superior court abused its discretion by denying disclosure of confidential records it had reviewed, reversal is not required unless the error was prejudicial under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Samuels (2005) 36 Cal.4th 96, 110; People v. Gaines (2009) 46 Cal.4th 172, 182-183 (Gaines).)The determination of whether the court's error was prejudicial "involves an assessment or weighing of the persuasive value of the evidence that was presented and that which should have been presented. [Citations.]" (Gaines, supra, 46 Cal.4th at p. 182, italics added.) There must be a reasonable probability of a different outcome if the potential impeachment evidence had been disclosed. (Ibid.)
With these standards in mind, we turn to the procedural history of the Pitchess proceedings in this case.
B. Denial of defendant's Pitchess motion
Defendant's Pitchess motion was triggered by Officer Iturriria's preliminary hearing testimony, which was consistent with his subsequent trial testimony about defendant's confession-that he interviewed defendant at the scene, and defendant admitted he had been drinking beer for several hours, he was rushing home to use the restroom, he realized he had hit a child, and he ran from the scene because he did not want to see a dead child.
After the preliminary hearing, defendant filed a motion for disclosure of Officer Iturriria's personnel records pursuant to Evidence Code section 1043 and Pitchess. According to defense counsel's supporting declaration, defendant asserted "most forcefully" that Iturriria lied under oath at the preliminary hearing about defendant's confession; defendant claimed he never made any statements that he knew he had hit the victim with his vehicle. Defense counsel alleged that Officer Iturriria falsified information in his incident report and during his preliminary hearing testimony about defendant's alleged confession. Defendant's Pitchess motion was thus limited to the credibility of Iturriria's testimony about his confession.
Defendant's Pitchess motion requested discovery of Officer Iturriria's personnel records to impeach his veracity, and as to his character for prior illegal conduct, lying at trial, falsifying reports and/or testimony, and any specific incidents in which he engaged in conduct constituting moral turpitude, regardless of whether the conduct was criminal or resulted in a conviction.
The superior court found good cause to conduct a review of Officer Iturriria's confidential personnel records.
On January 21 and 27, 2009, Judge Michael Bush conducted the in camera Pitchess hearings. At both hearings, CHP Lieutenant Terry Roberts testified as the CHP's custodian of records and appeared with a deputy attorney general. The court reviewed eight confidential files related to Officer Iturriria and denied disclosure of all the materials. The court and the custodian recited certain identifying information about the eight confidential files that were reviewed, but the court did not make a record during the in camera hearing about the nature and/or substance of any of the files.
At the conclusion of the in camera Pitchess hearings, the court returned the confidential files to the custodian. The court did not retain copies under seal of any of the confidential files it had reviewed, and it did not order the custodian to ensure the files were not destroyed. The court then ordered the reporter's transcripts of the in camera hearings to be sealed.
C. The appellate record
On appeal, defendant moved to augment the appellate record with the sealed reporter's transcripts from the superior court's in camera Pitchess hearings. This court granted defendant's augmentation motions, and the confidential transcripts were augmented to the appellate record under seal and not disclosed to the parties.
The reporter's transcripts for the January 21 and 27, 2009, in camera Pitchess hearings are confidential and have been filed under seal with this court. We have summarized the procedural aspects of those hearings in order to address the issues in this case. In doing so, we have not altered the confidential nature of those sealed transcripts, and they remain sealed pending further order of this court.
This court determined that the superior court failed to retain copies of the eight confidential files it had reviewed at the in camera hearings, and it failed to recite the nature and/or substance of those files within the sealed reporter's transcripts. On this court's own motion, we ordered the CHP, as custodian of records, to file those eight confidential files with this court under seal.
On April 13, 2011, the CHP's custodian of records filed with this court, under seal, five of the eight confidential files which the superior court reviewed at the in camera Pitchess hearings. The custodian advised this court that the other three confidential files which had been reviewed by the superior court had been "purged from our files. The California Highway Patrol retention policy for Adverse Action and Citizen Complaints is five years and upon reaching the time frame they are purged and destroyed." (Italics added.)
D. The settled statement hearing
On April 28, 2011, the superior court conducted a hearing in response to this court's order for a settled statement as to the nature and substance of the confidential records it had reviewed at the in camera Pitchess hearings. The initial portion of that hearing was not confidential. The court then excused the prosecutor and defense counsel, and conducted the rest of that hearing in camera. The court sealed the reporter's transcript for the entire hearing and filed that sealed transcript with this court.
The initial portion of the April 28, 2011, hearing was conducted in open court and was not confidential. This court has granted defendant's motion for disclosure of the reporter's transcript for the nonconfidential portion of that hearing. The confidential portion of the reporter's transcript for the April 28, 2011, hearing remains under seal and will not be disclosed to the parties except upon further order of this court.
Based upon our review of the entirety of the sealed reporter's transcript, this court has determined that the superior court was unable to independently recollect the contents of the three confidential files it reviewed at the in camera Pitchess hearings, and which were later subject to routine destruction by the custodian. During the confidential portion of the April 28, 2011, settled statement hearing, the superior court reviewed the sealed reporter's transcripts from the two in camera Pitchess hearings it conducted in January 2009, and made the following statements:
"So as a factual matter, I had the opportunity on two separate occasions a week apart [in January 2009] to review Officer Iturriria's personnel file and complaints. On both those dishonesty was an issue and on both of those I did not release any documents dealing with dishonesty. That tells me I'm confident even though destroyed, citizen complaints we've already referenced simply did not have anything to do with dishonesty. It may have had—number of things could have been involved, but it tells me they would not have—they would not have referenced dishonesty, although I have no independent recollection."
We have unsealed the reporter's transcript for the confidential portion of the April 28, 2011, settled statement hearing, at page 14, only to the extent necessary to quote this language from the superior court so the parties could address the issues raised by this matter. This limited disclosure does not affect the rest of the April 28, 2011, reporter's transcript of the confidential settled statement hearing, and the balance of that transcript remains confidential and sealed unless otherwise ordered by this court.
This court subsequently advised the parties about the status of the record, and requested and received briefing on the issues raised by the procedural history of this case.
E. Review of the five existing confidential files
As explained ante, the superior court reviewed eight confidential files at the Pitchess hearings in this case. The custodian transmitted five of those confidential files to this court under seal. Based on our review of those five confidential files, we find there was nothing subject to disclosure under Pitchess, and the superior court did not abuse its discretion when it denied defendant's Pitchess motion as to those five confidential files. (Mooc, supra, 26 Cal.4th at p. 1232; People v. Prince (2007) 40 Cal.4th 1179, 1286.)
F. The superior court's duty to preserve the record
We now turn to the issues raised by the custodian's routine destruction of the other three confidential files. As explained ante, once the superior court finds good cause to review confidential personnel records pursuant to Pitchess, it is required to make a record of the materials it reviewed for purposes of appellate review. (Mooc, supra, 26 Cal.4th at pp. 1229-1230; People v. Guevara, supra, 148 Cal.App.4th at p. 69.) On appeal, this court is required to review the "record of the documents examined by the trial court" and determine whether the trial court abused its discretion in refusing to disclose the contents of the officer's personnel records. (Mooc, supra, 26 Cal.4th at p. 1229; People v. Hughes, supra, 27 Cal.4th at p. 330.)
In Mooc, the California Supreme Court addressed record preservation when the custodian of records presents the superior court with confidential files to review under Pitchess:
"The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant's Pitchess motion. A court reporter should be present to document the custodian's statements, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record. [Citation.]" (Mooc, supra, 26 Cal.4th at p. 1229.)
Mooc further explained the superior court's duties to preserve the record:
"If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party's ability to obtain appellate review of the trial court's decision, whether to disclose or not to disclose, would be nonexistent. Of course, to protect the officer's privacy, the examination of documents and questioning of the custodian should be done in camera in accordance with [statutory requirements], and the transcript of the in camera hearing and all copies of the documents should be sealed.
[Citation.]" (Mooc, supra, 26 Cal.4th at pp. 1229-1230, fn. omitted, italics added.)
As applied to the instant case, the record of the confidential in camera Pitchess hearings held in January 2009 shows that the court placed very general identifying information on the record about the eight confidential files it had reviewed. Moreover, the court did not retain sealed copies of those confidential files.
We note that defendant did not request the superior court to ensure the record was preserved for future appellate review, or request the court to issue an order for the custodian not to permit destruction of the record while this case was pending on appeal. However, defendant was not entitled to be present at the in camera Pitchess hearings, the confidential transcripts were sealed, and defendant had no way of knowing what happened at those hearings. (See, e.g., People v. Prince, supra, 40 Cal.4th at pp. 1284-1285.) More importantly, defendant complied with his duties on appeal and immediately requested this court to augment the appellate record to include the confidential transcripts from the in camera Pitchess hearings. (Cf. People v. Rodriguez (2011) 193 Cal.App.4th 360, 366-367.)
Mooc requires the superior court to preserve the record for "meaningful appellate review" by retaining "copies of the documents it examined before ruling on the Pitchess motion, [making] a log of the documents it reviewed in camera, or just [stating] for the record what documents it examined (such transcript, of course, to be sealed) ...." (Mooc, supra, 26 Cal.4th at p. 1228.) In this case, however, the court recited very limited information about the confidential files without retaining copies of those files. There is nothing in the record of the in camera hearings to indicate that the confidential files were too voluminous for copying. The superior court should have ordered the custodian to prepare copies of the entirety of the confidential files it reviewed at the in camera hearings, mark them as exhibits, seal the exhibits, and file the sealed exhibits with the sealed transcripts to await appellate review. Alternatively, the superior court could have preserved the record for "meaningful appellate review" by giving a more specific description of the contents of the confidential files it reviewed during the two in camera hearings, and sealing the transcripts. (Mooc, supra, 26 Cal.4th at pp. 1228-1229.)
Mooc states that in order to preserve the record, "the court can prepare a list of the documents it considered, or simply state for the record what documents it examined." (Mooc, supra, 26 Cal.4th at p. 1229, italics added.) The superior court essentially prepared such a list when it recited certain identifying information into the record of the confidential in camera hearings, but recitation of that "list" did not fully satisfy Mooc: "Without some record of the documents examined by the trial court, a party's ability to obtain appellate review of the trial court's decision, whether to disclose or not to disclose, would be nonexistent." (Id. at pp. 1229, italics added.) This additional directive gives meaning to Mooc's holding that an appellate court must review the "record of the documents examined by the trial court" to determine whether the trial court abused its discretion in refusing to disclose the contents of the officer's personnel records pursuant to Pitchess. (Mooc, supra, 26 Cal.4th at p. 1229; People v. Hughes, supra, 27 Cal.4th 287, 330.) While Mooc stated the superior court could discharge its duties by reciting a list or log of the confidential documents it had reviewed, such a suggestion presupposes that the list or log would necessarily correspond to copies of the actual files, in order to permit "meaningful appellate review" of confidential files which were before the superior court when it ruled upon the Pitchess motion. (Mooc, supra, 26 Cal.4th at p. 1228.)
Mooc further provides that when there is an insufficient record or any uncertainty as to which documents were reviewed by the trial court before it ruled on a Pitchess motion, the reviewing court may order a limited remand with directions for the trial court to conduct a hearing and clarify the confidential materials it reviewed in camera. (Mooc, supra, 26 Cal.4th at p. 1231; Gaines, supra, 46 Cal.4th 172, 180-181.) We already took that step when we ordered the superior court to conduct an in camera hearing and prepare a confidential settled statement on this matter.
In situations where confidential personnel files reviewed by the superior court at a Pitchess hearing are subsequently destroyed, and there is no evidence of bad faith, the appellate court may instead consider secondary evidence, including the superior court's statements about the contents of the files, in order to determine whether the court abused its discretion when it denied a defendant's Pitchess motion. (People v. Jackson (1996) 13 Cal.4th 1164, 1221, fn. 10; People v. Memro (1995) 11 Cal.4th 786, 831-832, overruled on other grounds in Gaines, supra, 46 Cal.4th 172, 181, fn. 2; People v. Prince, supra, 40 Cal.4th 1179, 1285.)
While the superior court attempted to provide some type of "list" of the confidential files that it reviewed at the Pitchess hearings, that list is insufficient to permit meaningful appellate review of the court's denial of defendant's Pitchess motion because we do not have the three files that were purged, we do not have sufficient descriptions of those purged files, and the court was unable to recollect the contents of those files.
We thus conclude that the superior court failed to comply with Mooc when it simply recited the list of confidential files it had reviewed without making copies of those files.
G. Due process
While the superior court failed to adequately preserve the record, this finding does not end our analysis. Defendant argues the destruction of the three confidential files violated his right to due process, and he has been deprived of an adequate record to enable this court to conduct a meaningful appellate review and determine whether his Pitchess motion should have been granted.
The CHP's retention and destruction policy is not unusual in this state, and the routine destruction of the three confidential files did not violate defendant's due process rights. There is no statutory right to disclosure of citizen complaints of police misconduct that occurred "more than five years before" the charged crime. (Evid. Code, § 1045, subd. (b)(1).)
"The Pitchess procedures not only require law enforcement agencies to compile citizen complaints, but they also contemplate the destruction of such complaints after five years. [Citation.] Many if not most law enforcement agencies have a policy of routinely destroying citizen
complaints after five years. [Citations.] [Evidence Code] [s]ection 1045(b)(1)'s five-year cutoff for discovery of police officer personnel records mirrors the five-year cutoff for retention of citizen complaints under Penal Code section 832.5. [Citation.] The parallel five-year periods may well reflect legislative recognition that after five years a citizen's complaint of officer misconduct has lost considerable relevance." (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 11 (City of Los Angeles), italics in original.)
The California Supreme Court has thus held that "routine record destruction after five years" does not deny a defendant's due process rights. (City of Los Angeles, supra, 29 Cal.4th at p. 12, italics in original.) "Unless there is bad faith by the law enforcement agency, the destruction of records does not implicate a defendant's constitutional right to a fair trial; routine destruction by a law enforcement agency 'acting ... "in accord with [its] normal practice" ' tends to indicate ' "good faith" ' [citations]." (Ibid.)"[D]ue process does not prohibit a law enforcement agency from destroying records of citizen complaints that are more than five years old and whose exculpatory value to a specific case is not readily apparent ...." (Ibid.) Such destruction "violates a defendant's right to due process only when the complaint's exculpatory value to a particular criminal case is readily apparent before its destruction. [Citation.] The mere 'possibility' that the complaint might be exculpatory in some future case is insufficient. [Citation.]" (Id. at pp. 11-12; see also People v. Jackson, supra, 13 Cal.4th 1164, 1221, fn. 10 [no due process violation for routine destruction of complaints in accordance with existing departmental policies].)
The CHP's custodian of records informed this court that three of confidential files reviewed by the superior court at the Pitchess hearings in January 2009 were "purged from our files. The [CHP] retention policy for Adverse Actions and Citizen Complaints is five years and upon reaching the time frame they are purged and destroyed." There is no evidence that the CHP destroyed any of Officer Iturriria's personnel records in bad faith or that the CHP's record retention policy was suddenly enacted to enable the destruction of these specific reports. While the superior court did not order the CHP to retain the records, it did not have any notice that the records might be slated for routine destruction. The routine destruction of the three confidential files did not violate defendant's due process rights. (City of Los Angeles, supra, 29 Cal.4th 1, 12; People v. Memro, supra, 11 Cal.4th 786, 831-832.)
H. Prejudice
We must thus determine the prejudicial impact arising from the routine destruction of the three confidential files on our appellate review of defendant's Pitchess motion and the entirety of his convictions. In situations where the trial court reviewed confidential records pursuant to Pitchess and denied disclosure, and the reviewing court finds the trial court abused its discretion by denying disclosure of the confidential records, defendant is not entitled to reversal per se. Instead, reversal is not required unless the error was prejudicial under the standard of Watson. (People v. Samuels, supra, 36 Cal.4th 96, 110; Gaines, supra, 46 Cal.4th 172, 182-183; Alford v. Superior Court, supra, 29 Cal.4th at p. 1039.) There must be "a reasonable probability of a different outcome had the evidence been disclosed. [Citations.]" (Gaines, supra, 46 Cal.4th at pp. 182-183.)
The California Supreme Court has explained that the trial court's erroneous failure to grant disclosure under Pitchess is not subject to review under the heightened standard of harmless beyond a reasonable doubt set forth in Chapman v. California, supra, 386 U.S. 18. (Gaines, supra, 46 Cal.4th at p. 184.)
The California Supreme Court has explained that "[t]he reasonable-probability standard of prejudice we have applied in Pitchess cases is the same standard we have applied generally to claims that the prosecution improperly withheld exculpatory evidence in violation of a defendant's right to due process" under Brady v. Maryland (1963) 373 U.S. 83. (Gaines, supra, 46 Cal.4th at p. 183.)
""[Brady]held 'that the suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment.' [Citation.] Evidence is material ' "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." '
[Citation.] It is true ... that a trial court need make a determination only of 'the materiality [of the requested documents] to the subject matter involved in the pending litigation' before ordering disclosure of the confidential materials under Pitchess. [Citation.] But a trial court's finding that information is material within the meaning of the Pitchess scheme does not mean that it is material within the meaning of Brady, for these two legal schemes 'employ different standards of materiality.' [Citation.] 'Our state statutory scheme allowing defense discovery of certain officer personnel records creates both a broader and lower threshold for disclosure than does the high court's decision in Brady .... Unlike Brady, California's Pitchess discovery scheme entitles a defendant to information that will "facilitate the ascertainment of the facts" at trial [citation], that is, "all information pertinent to the defense." ' [Citation.] Consequently, a finding that material evidence was wrongfully withheld under Pitchess does not invariably mean that a defendant's right to due process was denied, 'since "the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense." ' [Citations.] To establish a due process violation, a defendant must do more than show that 'helpful' evidence was withheld [citation]; a defendant must go on to show that ' "there is a reasonable probability that, had [the evidence] been disclosed to the defense, the result . would have been different." ' [Citations.]" (Gaines, supra, 46 Cal.4th at p. 183, italics added.)
If the reviewing court determines that confidential information should have been disclosed to the defense, and a reasonable probability exists that discovery of that information "would have led to admissible evidence of sufficient weight" to affect the outcome of the defendant's trial, then "reversal of the judgment is required." (People v. Memro (1985) 38 Cal.3d 658, 685.)
Thus, if we had access to all confidential documents reviewed by the superior court, and we determined the court improperly denied disclosure of one or more files, the court's error would have been subject to review pursuant to Watson. (See also People v. Hustead, supra, 74 Cal.App.4th 410, 418-419, 422-423 [review of Pitchess error pursuant to Watson standard of prejudice; People v. Johnson (2004) 118 Cal.App.4th 292, 305[same].)
I. Analysis
We find the superior court's denial of defendant's Pitchess motion, and the routine destruction of the three confidential files related to Officer Iturriria, were not prejudicial given the absence of bad faith and the specific facts and circumstances of this case. Even if those three confidential files should have been disclosed to defendant, and might have led to admissible impeachment evidence against Officer Iturriria, there is no reasonable probability of a different outcome if those files had originally been disclosed because there is still overwhelming evidence, independent of Iturriria's trial testimony, to support every element of defendant's convictions.
While the five surviving files reviewed by the superior court remain confidential and under seal, we note that there was absolutely no discoverable information in any of those confidential files that would have undermined Officer Iturriria's credibility or veracity.
Defendant was convicted of count I, driving under the influence of alcohol, and performance of an unsafe turn and/or without signaling, proximately causing bodily injury; count II, driving while having a blood-alcohol level of 0.08 percent or more, and performance of an unsafe turn and/or without signaling, proximately causing bodily injury; count III, the lesser offense of hit and run with injury; and count IV, misdemeanor driving without a valid driver's license.
As to the actual collision, Crystal Amundson was an eyewitness and testified she was in her vehicle when she heard the sound of squealing tires, saw defendant's truck swerving on the roadway like it was trying to stop, and it appeared to go out of control as defendant tried to turn into the apartment's driveway. Amundson and her son saw defendant's truck jump the curb, hit the victim, and crash into the mailboxes and the fence.
Officer Petty testified he fully examined defendant's truck at the collision scene, and determined it was damaged on the front left side. The damage continued across the front bumper and went all the way down the truck's right side. Petty testified there was no visible damage to the back of defendant's truck. Petty examined the roadway along which defendant had been traveling and swerving just before he tried to turn into the apartment's driveway. Petty did not see any skid or tire friction marks.
Defendant did not file a Pitchess motion as to Officer Petty.
As for the elements of hit and run, Amundson, the eyewitness, testified that immediately after the collision, and as the victim was lying on the grass, defendant's truck started "peeling out really, really bad" on the grass as if defendant was trying to drive away. Amundson kept her own vehicle in the path of defendant's truck so he could not leave the scene. Amundson's son, who was in his mother's vehicle, testified defendant looked at him immediately after the impact, and then defendant jumped out of his truck and ran through the apartment complex. Amundson's son chased defendant, several bystanders joined in the chase, someone found defendant hiding between a mattress and box spring, and someone sat on top of defendant to prevent him from running away until the police arrived.
As for defendant's intoxication, we acknowledge that Iturriria testified about defendant's intoxicated demeanor, his PAS test results, and his confession. However, there was independent evidence of defendant's intoxication. A nurse took defendant's blood sample at the hospital. The two criminalists who performed the tests appeared at trial and testified that defendant's blood sample was taken at 6:59 p.m., about one hour after the collision, and his blood-alcohol level was 0.10 percent; defendant's blood sample was tested again at a later date, and the result was 0.101 percent.
As explained in section IV, ante, Vehicle Code section 23152, subdivision (b) states a permissive inference that a jury may, but is not required to, conclude that a defendant's blood-alcohol level was in excess of legal limits if a chemical test taken within three hours after the driving shows the person had a blood-alcohol level of 0.08 percent or more. The jury was instructed about the permissive inferences for counts I and II.
There was also independent evidence of the victim's grievous injuries, based on the testimony of Amundson about her eyewitness observations of the child's condition immediately after the collision, as well as the observations of the emergency room physician who initially treated the child.
As for count IV, driving without a license, the parties stipulated that defendant did not have a valid driver's license at the time of the collision.
There was also independent evidence which refuted defendant's trial theory that a white truck purportedly triggered the collision. Defendant's theory was based on the testimony of Anna Cruz, the apartment manager, who admitted that she did not see the collision. Cruz was in her apartment and heard a loud noise, she saw defendant being chased by other people, and then she went to the front of the building and saw the collision scene and the injured victim. It was at that point that Cruz saw a white truck parked "sideways" and at an angle, it left "[w]ithin minutes," and it "fled the scene."
However, Cruz conceded she did not know the actual role of the white truck, and she just knew it had stopped in an unusual way and then left quickly. Cruz also conceded that she did not examine defendant's truck at the collision scene, but explained she later retrieved it from a tow yard and insisted the back bumper was pushed in and had white paint on it.
Cruz's testimony was contradicted by eyewitnesses who were present at the collision scene. Amundson saw the actual collision and testified the white truck was not involved in the collision. Amundson heard the sound of squealing tires, looked toward the street, saw defendant's truck swerve, and then saw "a white truck swerve way out, like onto the other side of the road." Amundson testified the white truck pulled over to the side of the road before the collision occurred.
"Q. Were you able to see whether or not that white truck hit the defendant's truck?
"A. Yes. He did not hit the defendant's truck."
In addition, Officer Petty fully examined defendant's truck at the collision scene and did not see any visible damage to the rear bumper.
We thus conclude that even if the superior court should have granted defendant's Pitchess motion as to the three purged confidential files, presuming those files contained discoverable information which would have led to admissible evidence to impeach Officer Iturriria's credibility, the routine destruction of the confidential records did not violate defendant's due process rights and was not prejudicial since there was still overwhelming independent evidence of every element of the convictions in this case, and there is no reasonable probability of a different outcome had possible impeachment evidence been disclosed. (Gaines, supra, 46 Cal.4th at pp. 182-183.)
VI. Sentencing issues
Defendant contends the court improperly imposed the upper term for the great bodily injury enhancement based on a factor that was not tried to the jury. Defendant also contends the court improperly imposed one of the fines in this case.
A. The great bodily injury enhancement
At the sentencing hearing, the court found as an aggravating circumstance that defendant had served a prior prison term. The court further noted that the victim was "busted up very badly. Quite amazing to this Court that the boy is still alive."
The probation report states that defendant had a prior misdemeanor conviction for violating Vehicle Code section 23152, subdivision (b) and was sentenced to three years' probation and two days in jail. Defendant also had a prior felony conviction for violating Health and Safety Code section 11378 and was sentenced to two years in state prison.
The court sentenced defendant to an aggregate term of eight years, based on the midterm of two years for count I, driving under the influence of alcohol proximately causing bodily injury, and the upper term of six years for the enhancement that he personally inflicted great bodily injury on a person under the age of five years old in the commission of the crime (Pen. Code, § 12022.7, subd. (d)). The court stated the upper term for the enhancement was appropriate "based on the extensive injuries suffered by Jordy." The court stayed the remaining terms.
Defendant contends the court improperly relied on the serious nature of Jordy's injuries to impose the upper term for the great bodily injury enhancement, since it was an inherent aspect of the enhancement and a fact that had not been tried to the jury and proved beyond a reasonable doubt, in violation of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely),and Cunningham v. California (2007) 549 U.S. 270 (Cunningham).
Apprendi established the rule that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.) The presence of a single aggravating circumstance found in accordance with Apprendi renders the defendant eligible for the upper term. (People v. Black (2007) 41 Cal.4th 799, 815 (Black).)Therefore, "imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (Id. at p. 816.)
The prior conviction exception has been consistently recognized, and includes the fact that defendant served a prior prison term, which is a recidivism factor that need not be found by the jury. (Black, supra, 41 Cal.4th at pp. 818; Cunningham, supra, 549 U.S. at p. 288, Blakely, supra, 542 U.S. at p. 301, Apprendi, supra, 530 U.S. at p. 49; People v. Towne (2008) 44 Cal.4th 63, 79-82; People v. Thomas (2001) 91 Cal.App.4th 212, 223.)
In this case, while the court cited Jordy's injuries when it imposed the upper term for the great bodily injury enhancement, the court also cited to his service of a prior prison term as an aggravating circumstance. To the extent the court improperly relied on Jordy's injuries to impose the upper term, any error is harmless beyond a reasonable doubt given the existence of defendant's two prior convictions and service of a prior prison term. (Black, supra, 41 Cal.4th at pp. 812, 818; People v. Sandoval (2007) 41 Cal.4th 825, 839.)
B. Failure to state the statutory basis for a fine
At the sentencing hearing, the court imposed "a mandatory fine of $390, to be converted to 13 days custody, to run concurrent with the above sentence." Defendant contends, and the People concede, the matter must be remanded for the court to state the statutory basis for the imposition of this fine. (See, e.g., People v. High (2004) 119 Cal.App.4th 1192, 1200 [court with duty to separately delineate all fees, fines, and assessments imposed].)
DISPOSITION
The matter must be remanded for the court to clarify the statutory basis for the imposition of $390 fine. In all other respects, the judgment is affirmed.
Poochigian, J.
WE CONCUR:
Dawson, Acting P.J.
Kane, J.