Opinion
F076446
02-28-2020
THE PEOPLE, Plaintiff and Respondent, v. LUIS VILLACHANA, Defendant and Appellant.
Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. BF165478A & BF135522A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Stephen D. Schuett, Judge. Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
This case arises from a September 2016 probation search of defendant's residence where a firearm and ammunition were found. Defendant was subsequently charged in Kern Superior Court case No. BF165478A with possession of a firearm by a person convicted of a felony (count 1) (Pen. Code, § 29800, subd. (a)(1)) and possession of ammunition by a person convicted of a felony (count 2) (§ 30305, subd. (a)(1)). As to each count, it was alleged defendant had suffered two prior prison terms within the meaning of section 667.5, subdivision (b). As possession of a firearm and ammunition were also a violation of defendant's probation terms, his probation was revoked, and a hearing on the violation was set in Case No. BF135522A.
Further reference to case numbers are to Kern Superior Court case numbers.
At trial on case No. BF165478A, the jury found defendant guilty on counts 1 and 2. In a bifurcated proceeding, the court found true defendant had suffered two prior prison terms within the meaning of section 667.5, subdivision (b). The court sentenced defendant to the upper term of three years on count 1 (§§ 18, 29800, subd. (a)(1)), enhanced by one year for a prior prison term under section 667.5, subdivision (b). On count 2, the court imposed a three-year term (§§ 18, 30305, subd. (a)(1)-(2)), which was stayed pursuant to section 654. As to the violation of probation in case No. BF135522A, the court found defendant had violated the terms of his probation by committing the crimes for which he had been found guilty in case No. BF165478A and sentenced defendant to the upper term of four years for violation of section 273.5, subdivision (a), to be served concurrently with the sentences imposed in case No. BF165478A.
Two prior prison terms were alleged, and the court found them both true. However, as to the second prior prison term arising out of case No. BF135522 for violation of section 273.5, subdivision (a), defendant did not serve any prison time but was given probation. Having been advised of the mistake by probation, the court imposed only a single one-year prior prison term enhancement.
On appeal, defendant argues the trial court prejudicially erred by admitting evidence of defendant's probation status. Defendant also maintains the probation officers conducting the probation search exceeded their authority by serving as the prosecution's sole investigating agency, which in turn violated the separation of powers doctrine, created an untenable conflict of interest, and caused procedural problems that rendered defendant's trial fundamentally unfair and violated his federal due process rights. For the reasons discussed below, we reject defendant's contentions of error and affirm the judgment.
FACTUAL SUMMARY
While under the supervision of the county probation department, defendant was subjected to a probation compliance search on September 6, 2016, at an apartment on Oregon Street that defendant had reported to probation as his residence. Four probation officers arrived at the Oregon Street apartment that evening, including defendant's supervising probation officer Martha Robles; defendant, his girlfriend, his mother, and defendant's two children were in the apartment at the time. A bedroom defendant indicated was his was searched by two officers, who found a gun and ammunition. When defendant was read his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), he admitted he had purchased the gun. Defendant's girlfriend, Serena Cerda, was also advised of her Miranda rights and interviewed. She denied knowledge of the gun. Defendant was arrested and charged with unlawful possession of a firearm and ammunition, and his probation was revoked.
I. Relevant Pretrial Proceedings
Prior to trial, the parties stipulated defendant is prohibited from owning a firearm or ammunition, and defendant's motion to bifurcate the proceedings as to his prior convictions was granted. However, the parties disputed two witness statements disclosed for the first time on August 10, 2017. The prosecutor indicated she had just received a statement from Cerda dated June 19, 2017, which contained "contradictory statements as to what was provided or stated in the police report as far as statements from Ms. Cerda." Defense counsel argued the late disclosure was inadvertent and he had just been handed an email dated August 10, 2017, from Robles to the prosecutor, which contained "a wealth of information that was not in [Robles's] original report." At the prosecutor's request to clarify portions of Cerda's newly received statement, Cerda testified in an Evidence Code section 402 hearing (402 hearing).
A. Cerda's 402 Hearing Testimony
Cerda testified she is in a relationship with defendant, they have three children together, but he does not live with her in the Oregon Street apartment, which was the apartment searched by probation on September 6, 2016. Defendant lives with his sister on Charter Oak Street and has been living there for the last two years. Cerda was aware defendant had reported the Oregon Street address to the probation department as his residence, and she knew he was not permitted to possess or have access to a gun.
Cerda testified she had purchased the gun probation officers found in the upstairs bedroom from a friend of her brother-in-law, who is now deceased. She paid for the gun in $50 increments starting in May 2016, and when she finished paying for it in July 2016, she picked the gun up at her sister's house. She purchased the gun for protection due to a prior attempted break-in at her residence, and she kept the gun inside one of the drawers of her bedframe.
B. Defense Pretrial Motions
Defense counsel filed a motion in limine (MIL) seeking to preclude any reference to defendant's probation during the trial. He argued defendant's probation status was irrelevant in light of the parties' stipulation of his prior felony conviction and unduly prejudicial. In opposing the motion, the prosecutor argued precluding any mention of defendant's probation status took away from the framework of the case and the ability to explain why the officers were in that particular residence and why they were conducting a search.
The court determined Cerda's 402 hearing testimony raised the issue of why probation officers searched the Oregon Street apartment rather than defendant's sister's house, where Cerda asserted defendant actually lived. The court found defendant's probation status relevant and denied defendant's motion.
Defense counsel then made an oral motion for the court to recuse itself. Defense counsel argued that because probation is an arm of the court, it would appear to the jury that the court was acting as a peace officer, and this would cause confusion; he also asserted the court had a conflict as a result of allowing the jury to know a probation officer conducting the search was testifying against defendant. Defense counsel maintained the entire Kern County Superior Court had a conflict of interest "because the probation department is an entity that belongs to the court." The court denied defendant's motion.
II. The Prosecution's Case-in-chief
The prosecution offered testimony from two of the four probation officers who searched the Oregon Street apartment on September 6, 2016.
A. Officer Lafebre's Testimony
Probation Officer Jessica Lafebre testified she was a Kern County Probation Officer with 10 years of experience. Her job required ensuring probationers remained compliant with their probation terms and conditions imposed by the court; she investigates compliance by conducting home visits and searches. Defense counsel interposed a continuing objection to this questioning and testimony based on his prior MIL to preclude reference to probation.
Lafebre had conducted hundreds of compliance searches. She explained probation officers do not conduct compliance searches alone, but typically will have a partner on duty with them at the search. If they feel more support officers are needed, they will ask other officers to accompany them on a search. To conduct a compliance search at a particular location, officers rely on the address probationers report to the probation department, and it is the probationer's responsibility to report accurate information as to where they reside.
As to the September 2016 compliance search of the Oregon Street apartment, Lafebre assisted Robles; Robles had briefed Lafebre and the other officers who would be conducting the search that defendant was the target, and Robles provided details about defendant's probation terms. When the probation officers arrived at defendant's residence on Oregon Street, Robles knocked on the door and announced their presence by identifying herself and the other officers. She was granted entrance, and Lafebre and two other officers followed Robles inside the residence.
While pointing above her head, Lafebre asked defendant if the room above them was his bedroom; he confirmed it was. Lafebre proceeded to that bedroom and assisted Probation Officer Pineda with the search. Lafebre could not recall whether there was anything inside the bedroom that indicated defendant stayed in that room such as clothing or other items. The bedframe in the room had drawers, which Lafebre searched and discovered what appeared to be a black plastic case containing a firearm and two 10-round magazines. After discovery of the firearm, Robles came to the bedroom to examine the gun and the magazines.
On cross-examination, Lafebre was asked whether the probation department is part of the court, to which she responded it is "its own entity" and that probation officers are county employees. Lafebre had been referring to notes during her testimony, which she explained consisted of the "crime report" Robles had written about the incident. Lafebre had been trained to write search reports and to include anything relevant to the investigation, but she had not completed the report in this case—the report was written by Robles, and Lafebre considered the report accurate. Because she was not the lead officer at the scene, Lafebre did not write the report or direct the search of the residence that night. There were photographs taken of the gun and ammunition found in the bedroom, but Lafebre could not remember whether she had taken them or whether Officer Pineda had done so.
B. Officer Robles's Testimony
Officer Robles testified she had been defendant's supervising probation officer since April 2015. He had reported his residence was located on Oregon Street where Cerda lives; he confirmed it again on the night of the search. He had always listed that address, and it had never changed during Robles's supervision of him. There have been about 10 compliance checks done on defendant at that address; about half of the time defendant was in the apartment when officers arrived to search. As defendant's supervising probation officer, Robles directs compliance searches of his residence when they occur while she speaks with defendant.
When they arrived at defendant's residence on September 6, 2016, Robles knocked on the door and identified herself and the other officers. Cerda, who Robles knew was defendant's girlfriend from prior contacts, answered the door. Cerda told them defendant was upstairs; Robles asked Cerda to have a seat on the couch and requested Lafebre and Pineda to identify anyone else in the residence and ask them to come downstairs. Defendant and his mother eventually joined Cerda downstairs. Robles saw Lafebre ask defendant which room was his and saw her pointing up above her head, referring to the southeast bedroom. Defendant identified the southeast bedroom as his. It was the same room that had been identified as his during prior compliance searches. Pineda and Lafebre went upstairs, but Pineda then came back down and asked Robles to go upstairs to speak with Lafebre. Lafebre showed Robles the gun and the ammunition. Robles then went downstairs, commented to defendant, "'Really, Luis, a gun?'"; she then instructed defendant to come upstairs with her where she advised him of his Miranda rights.
Defendant told Robles he wanted to "'get this over with before his daughter [a]woke.'" He explained he had purchased the gun for $500 from a stranger who had approached him outside a store; he had purchased the gun for protection. Robles asked defendant whether he believed the gun was stolen; defense counsel interposed an objection, but the prosecutor asked a different question, and defendant's objection was not ruled upon.
According to Robles, defendant was escorted downstairs by Officer Gomez, and Cerda was brought upstairs and given a Miranda warning; Cerda was upset and crying. Cerda said a family member and a friend had stayed at the house a few days before, but she had no contact information for them, and she had not observed them bringing the gun case into the residence. They arrested defendant, and as they were preparing to leave the residence, Cerda was making statements such as, "'I'm just going to say [the gun is] mine. I'll get in less trouble.'"
C. Defense Objections
At the conclusion of Robles's direct examination, the jury was excused, and defense counsel made a motion for a mistrial. He argued the defense had never received any discovery showing Robles had participated in any searches of the Oregon Street apartment prior to September 6, 2016—including in Robles's August 10, 2017, email. He also objected to the prosecutor's questions eliciting whether defendant believed the gun was stolen as that was entirely irrelevant because defendant was never charged with possession of a stolen weapon.
The prosecutor argued defendant's address on Oregon Street was included in Robles's probation report. Moreover, the prosecutor had asked Robles during the 402 hearing if defendant lived at the Oregon Street apartment, defense had objected on foundation grounds, and these questions about how Robles knew defendant lived at the Oregon Street apartment laid that foundation. As to suspicions the gun was stolen, defendant had not objected at the time of that testimony.
Defense counsel asserted the prosecution had filed a MIL seeking to exclude all evidence that had not been previously disclosed, which was granted. Under Brady v. Maryland (1963) 373 U.S. 83 (Brady), he maintained the prosecutor had a duty to disclose evidence of the prior searches at least 30 days prior to trial. He argued that while defense was attacked for not timely providing Cerda's June 2017 statement, the prosecutor was seeking to admit testimony in violation of her own MIL and had questioned Robles about the stolen nature of the gun in bad faith.
The court denied the motion for a mistrial for the reasons stated by the prosecutor, but agreed to strike Robles's testimony that defendant said the gun was probably stolen and to instruct the jury that this statement was to be disregarded. Defense counsel then asked to be provided discovery with respect to the 10 searches Robles claimed to have conducted prior to September 6, 2016. Robles indicated the probation department records when officers have been to a residence, and a control center keeps log entries denoting when an officer has been to a probationer's residence. The court directed Robles to obtain what notes she had of any prior searches, and any logs made by the control center going back to April 2015.
D. Robles's Cross-examination
When proceedings resumed before the jury, defense cross-examined Robles. As to the September 6, 2016, search of the Oregon Street apartment, Robles was the officer in charge of collecting the pertinent information from the officers who assisted with the search. Robles had asked Lafebre and Pineda to search the upstairs bedroom and take pictures of the items located, but she did not know which officer took the photos. In her report of the search, she did not indicate she had searched the Oregon Street apartment in the past. Prior to the search she told Officer Gomez which bedroom defendant used, but she did not recall telling Lafebre or Pineda. Robles believed Gomez had gone into the kitchen to perform a protective search, but she was unsure; she did not record in her report what searches he conducted; nor did she record who performed the protective sweep of the children's northwest bedroom. No pictures were taken of the southwest or northwest bedrooms. Robles did not believe there was anything of value that she failed to note in her report.
Robles was questioned about her August email to the prosecutor, which had provided details not contained in Robles's original report. In the email, Robles indicated that during the search Cerda had said she was planning to say the gun belonged to her, but Robles did not find the statement relevant and it was not included in her report. Robles did not believe the gun was Cerda's—Cerda had made this statement as the officers were planning to leave the residence, she was crying, and Robles did not believe the gun was hers. When she was questioned, Cerda did not say the gun was hers. Cerda said a family member and a boyfriend had stayed at the house a few nights prior, but Cerda could not provide any contact information for them, she had not observed them bringing the firearm case into the house, and she said she had no prior knowledge of the firearm.
III. Defense Case
A. Cerda's Testimony
Cerda testified she and defendant have been in a relationship, on and off, for several years. He is the father of three of her children, but he does not live with her and the children—he lives at his sister's home. He comes to her apartment every day to spend time with the children. He is often there late at night, and sometimes he spends the night. When he spends the night, he sleeps in her son's room and occasionally he sleeps in Cerda's room. When she is not home, Cerda's bedroom is locked and only she has the key. She acknowledged the Oregon Street apartment has been searched by probation on prior occasions.
Cerda and defendant had previously explained to probation that defendant lives with his sister, not Cerda, despite that he spends about 80 percent of his time at the Oregon Street apartment because of the children. Defendant listed the Oregon Street apartment as his residence because he was there so much, and if probation conducted a search, that would be where they were likely to find him; probation had advised them to report his address that way. While he went into her bedroom on a regular basis, she always kept the bedroom door locked when she was gone from the residence.
On the night of the September 2016 search, the officers found Cerda's gun in her bedroom. Although she knew defendant was not allowed to have a gun or ammunition, in July 2016 she had decided to buy a gun because of an attempted burglary at the Oregon Street apartment in 2013. She purchased the gun from a friend of the father of her sister's children; she paid for the gun in $50 installments until September 2016 when the entire $350 was paid, and the gun was given to her with ammunition. She never told defendant about the gun, or the three antique guns she kept in a duffle bag in her closet for her father.
When Cerda was questioned about the gun during the September 2016 search, she did not want to get herself or defendant into trouble because of that gun or the other three in her closet, so she denied knowing anything about it and suggested her sister and her sister's boyfriend, who had spent the night at the apartment a few days before, put the gun there. When Robles advised her of her Miranda rights, however, she admitted the gun was hers, but Robles told her to be quiet, not to say that, and to think of her children. She was instructed to calm down and go back downstairs. Cerda went back downstairs and apologized to defendant—she was crying uncontrollably. She never said she was going to just say the gun was hers.
B. Defendant's Testimony
Defendant testified he did not live at the Oregon Street apartment, but he would go there to spend time with his and Cerda's children. He had reported the Oregon Street address to probation as his residence, but he had explained to Robles on prior occasions that he does not really live there. At the time of the search, he was having difficulty finding a place to stay, and he had stayed with his cousin and his sister intermittently, but he was not really living at either location. On the occasions he stayed at the Oregon Street apartment, he used the northwest bedroom, and he may have kept a few items of clothing in the closet. He and Cerda have a difficult relationship; she is a very private person, she locks her bedroom door when she is gone, and he has no permission to be in that room without her.
When the apartment was searched on September 6, 2016, defendant was there because Cerda had told him she was having difficulty with the children; he came over to help, but he was not planning to stay the night. When the gun was discovered during the search and he was questioned, defendant said the gun was his because he did not want the officers to arrest Cerda or take the children away. He had no idea any gun was in the apartment.
IV. Prosecution Rebuttal Case
A. Officer Pineda
Probation Officer Pineda was involved in the September 2016 search of the Oregon Street apartment. He searched the closet of the southeast bedroom—purportedly Cerda and defendant's room—but he did not find a duffle bag with guns; they were specifically looking for guns, so that would have been notable to him. He did not remember anything that would have alerted him to the fact defendant was not actually using that bedroom.
B. Officer Gomez
1. Testimony Before the Jury
During the search, Gomez saw Lafebre point upstairs and ask defendant whether the bedroom above their heads was his room (the southeast bedroom), and he saw defendant indicate it was. Gomez has been to that apartment previously for home visits, conducting approximately four or five searches. Defendant had indicated the southeast bedroom was his room on prior occasions, and Gomez had entered that bedroom previously to search. On prior occasions, the room has never been locked nor has a key been provided for the room.
During the September 2016 search, Gomez heard defendant tell Robles he had purchased the gun from someone who approached defendant outside a store. Gomez also heard Cerda say she was just going to tell everyone the gun was hers. Gomez had not written a report regarding the September 2016 search, but he had reviewed a report written by Robles. He had been in the Oregon Street apartment on approximately four prior occasions for similar compliance searches; he had notes with him that documented when probation officers completed home visits at that address in the past. Gomez indicated he reviewed the notes to refresh his memory of when he had made prior home visits to the Oregon Street apartment. Some of the logs of home visits included notes from defendant's prior supervising probation officer. When defense counsel inquired whether the prior supervising probation officer had lost his job and had gone to jail, a recess was called.
2. Dispute Over Gomez's Notes and Status of Former Officer
Out of the presence of the jury, the parties disputed the relevance of the prior probation officer's job status and whether he had been criminally convicted. Defense counsel made another motion for a mistrial, arguing the prosecution was attempting to ambush him. With regard to the notes to which Gomez referred during his testimony, defense counsel argued the prosecution had failed to disclose those to the defense. Defense counsel argued this was the third set of documents that had not been disclosed, which exhibited a pattern of unethical behavior by the prosecutor. Defense counsel asked for a mistrial "or a motion to continue the case so [he could] do more research of this individual who is the actual author of the notes that this officer is relying on."
The prosecution argued Gomez's notes were the same type of probation home visit logs that were at issue during Robles's testimony. She asserted, "this is a probation discovery report with the times of contact and notes of that contact. It is not required by [section] 1054 or Brady to be discovered to the defense counsel. It does not fall within that category. I was not previously provided this document; however, I did tell [defense counsel] that I was expecting this witness to testify to prior occasions that he went to this house and established that it was the defendant's residence and that the southeast bedroom was the defendant's room. [¶] In addition to that, this is impeachment in light of the defense witness'[s] lying. Impeachment is not required to be discovered prior to the witness testifying. In light of these things, the defense is not being ambushed. There is no cause for a mistrial." (Italics added.)
Defense counsel responded Gomez had been subpoenaed for trial over a month ago, the prosecutor must have talked to Gomez about the prior instances when he visited the house, and the prosecutor must have known about the probation home visit log notes but did not reveal them to the defense.
The court denied the motion for a mistrial, and then allowed defense counsel to question Gomez in a 402 hearing out of the jury's presence to determine what Gomez knew about the prior supervising probation officer.
During the 402 hearing, Gomez testified one of the home visit notes was written by defendant's prior supervising probation officer, Reyes Soberon, who was no longer employed by the probation department. Gomez testified he did not know why Soberon's employment had concluded.
Defense counsel then made a motion for a continuance to perform an investigation of former probation officer Soberon, the author of the note in the home visit log to which Gomez had referred. After additional argument by counsel, the court denied the motion for a continuance and prohibited defense from questioning Gomez further about Soberon. As for the probation home visit log notes to which Gomez had been referring, the court ruled the document was being used to refresh Gomez's recollection only, the document had no evidentiary value, nor was it being offered into evidence. The court instructed defense counsel he could cross-examine Gomez with respect to the fact that Gomez did not prepare the home visit log notes, and he therefore would have no idea as to its accuracy other than his own personal recollection. Cross-examination of Gomez was then completed.
C. Robles Recalled
On recall, Robles reiterated probationers are required to provide their living addresses monthly to the probation department so that officers know their locations. Defendant never told Robles he did not live at the Oregon Street apartment; he never said that was simply where he spent a lot of time; he never said anything about his situation there; and he never reported a different living address. In past searches of the Oregon Street apartment, none of the officers were ever informed they needed a key to obtain access to the southeast bedroom; they were never provided a key by Cerda; and Robles was never informed the bedroom was locked.
During the September 2016 search, defendant never mentioned the southeast bedroom was not his, and he did not deny owning the gun. Rather, he said the gun was his and he had purchased it for $500 from a stranger outside a store. He said he wanted to get the search and questioning over before his daughter awoke.
On questioning, Cerda never said the gun belonged to her or that she purchased the gun, and she did not mention any other guns in the house. Robles did not threaten Cerda during that interaction or tell her to shut up or be quiet. Had Cerda admitted the gun was hers and that defendant knew nothing about it, Robles would have reported that. When they were leaving the house, however, Cerda said she would just say the gun was hers because she would get in less trouble. On questioning about the probation records of home visits, Robles indicated the document was a data entry form, and it was called a probation discovery report.
V. Verdict and Sentencing
The case was submitted to the jury, which returned a guilty verdict as to both counts and, in a bifurcated proceeding, the court found true that defendant had suffered prior prison terms within the meaning of Penal Code 667.5, subdivision (b). The court sentenced defendant to an aggregate term of four years. Defendant appealed.
DISCUSSION
I. Defendant's Probation Status
At trial, defendant sought to preclude any mention of his probation status before the jury, but the trial court denied the motion. Defendant argues the trial court prejudicially erred by admitting evidence of defendant's probation status because it was not relevant and it was unduly prejudicial. The People dispute there was any error by the trial court. We agree with the People.
A. Legal Standards and Standard of Review
Only relevant evidence is admissible. (Evid. Code, § 350.) Evidence is relevant if it has any tendency in reason to prove or disprove a disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210.) Relevant evidence may be excluded, however, if the court in its discretion determines "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
"In determining the admissibility of evidence, the trial court has broad discretion." (People v. Williams (1997) 16 Cal.4th 153, 196.) The court also has broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion, or consumption of time pursuant to Evidence Code section 352. (People v. Dyer (1988) 45 Cal.3d 26, 73.) "'The weighing process under section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules.'" (People v. Greenberger (1997) 58 Cal.App.4th 298, 352.)
On appeal, a trial court's decision to admit or exclude evidence is reviewed only for abuse of discretion. (People v. Harris (2013) 57 Cal.4th 804, 841.) In determining whether a trial court has abused this broad discretion, "[a]n appellate tribunal is not authorized to substitute its judgment for that of the trial judge." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) Abuse of discretion occurs when a trial court "exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.)
B. Defendant's Probation Status was Relevant
Defendant's probation status was relevant, and the trial court did not err in admitting it. While there was no challenge to the validity or constitutionality of the probation search, and the parties had stipulated defendant was prohibited from possessing a firearm or ammunition, the defense theory was that defendant had no knowledge or constructive possession of the firearm and ammunition because he did not live at that apartment, and he did not have unfettered access to Cerda's bedroom where the items were discovered. Yet, this was inconsistent with what defendant had reported to probation for more than a year and it was inconsistent with prior searches at that apartment. Thus, not only was the search history and reports of his living address to probation relevant to prove the truth of defendant's statement to Robles that the gun was his and that he had access to the bedroom where it was found, it was also relevant to defendant's credibility.
Defendant argues whether he lived at the Oregon Street address was irrelevant to whether he had possession or control of the firearm and ammunition—his girlfriend and his children lived there, he visited frequently, and he admitted he sometimes slept with Cerda in the bedroom where the items were found. However, if that was defendant's residence, it tended to corroborate his statement to Robles that he had purchased the gun—it is reasonable to infer that people tend to keep their possessions where they live. That he had reported to probation he lived at the Oregon Street address for more than a year also bore directly on defendant's credibility. The trial court did not abuse its discretion in concluding basic facts about defendant's probation status were relevant, including that he was on probation, he was subject to intermittent searches, and searches had been conducted at that apartment in the past because that is where he told probation he lived, which was information he was required to provide.
C. Evidence Not Unduly Prejudicial
Defendant argues evidence related to his probation, even if relevant, was unduly prejudicial. He maintains that not only was his probation status placed before the jury, but the probation officers testified he had been on probation since at least April 2015 and he had been subject to numerous compliance searches. The jury was thus invited to believe defendant was dangerous since he needed such close monitoring, that the gun belonged to defendant because it was found at the address he had reported to probation as his, and because the probation officer who had supervised him for so long said that was his living address.
"'Prejudice' as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption '"substantially outweigh"' the probative value of relevant evidence, a section 352 objection should fail. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) '"The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.'" [Citation]' (People v. Karis (1988) 46 Cal.3d 612, 638.) [¶] The prejudice that section 352 '"is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]" [Citation.]' (People v. Zapien (1993) 4 Cal.4th 929, 958.) In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008-1009.)
The jury was not advised of the nature of the offense for which defendant was on probation, and the prosecutor did not argue conviction was warranted because defendant was a probationer. As such, there were no details related to defendant's probation that would have invited a purely emotional reaction from the jury. (Vorse v. Sarasy, supra, 53 Cal.App.4th at p. 1009; People v. Mendoza (2011) 52 Cal.4th 1056, 1091-1092 [evidence is unduly prejudicial when there is a substantial likelihood the jury will use it for an illegitimate purpose].)
Further, a necessary element of both charged offenses was defendant's status as a felon. (Pen. Code, § 29800, subd. (a)(1); CALCRIM No. 2511.) Probation is a logical result of suffering a felony, and the jury was aware of defendant's status as a felon. The basic fact he was on probation, absent details of the underlying felony, was not unduly prejudicial. As for the length or duration of his probation, there was no testimony indicating defendant had been on probation for an unusual duration. While there was some testimony about searches of defendant in 2015, that did not indicate a lengthy probation term or that defendant was more closely monitored than other probationers nor did it suggest he was dangerous. In fact, had the jury not been informed of his probation status, this would have invited speculation about why defendant had to report his address to law enforcement and why his residence was subject to searches by law enforcement.
Regarding defendant's argument his probation status tended to lead the jury to believe the gun belonged to him because it was found at the address he had reported to probation as his, and because the probation officer who had supervised him for so long said so, this is only an assertion the evidence was damaging to his defense and his credibility. (Vorse v. Sarasy, supra, 53 Cal.App.4th at p. 1008 [evidence is not unduly prejudicial "merely because it undermines the opponent's position or shores up that of the proponent"].) The evidence may have been damaging to defendant's case, but that did not make it unduly prejudicial.
In sum, there is no basis to conclude the jury used any details about defendant's probation status for an illegitimate purpose or that it provoked an illogical and irrational response from the jury. Defendant has not established undue prejudice under these facts. Having concluded there was no error, we decline to conduct a harmless error analysis. (See People v. Miramontes (2010) 189 Cal.App.4th 1085, 1103.)
II. Probation Officers' Investigation
Defendant also presents a series of arguments about probation's involvement in the investigation of the charged conduct and the probation officers' roles at trial. In this regard, defendant's arguments appear centered around one fundamental premise: probation officers exceeded the scope of their authority by investigating the discovery of the firearm, which was used to support new criminal charges. In other words, probation officers were empowered to investigate only a purported probation violation, but a different law enforcement agency was required to conduct the investigation of criminal conduct discovered during the search. According to defendant, the prosecutor's reliance on the probation search as the sole investigation supporting new criminal charges created a conflict of interest for the probation officers, violated the separation of powers doctrine because probation officers who operate as an arm of the court usurped functions reserved for the executive branch, and this created circumstances culminating in an unfair trial in violation of defendant's due process rights.
A. Probation Officers' Search Did Not Exceed Their Authority
Defendant first argues it was improper for probation officers to conduct an investigation from which new criminal charges were filed. He argues probation officers are not peace officers for purposes of criminal investigation under Penal Code section 830.5, and they had no authority to investigate a criminal offense. Defendant is incorrect.
Penal Code section 830.5 designates probation officers as peace officers "whose authority extends to any place in the state while engaged in the performance of the duties of their respective employment and for the purpose of carrying out the primary function of their employment ...." Under subdivision (a), this authority is limited and extends only "(1) To conditions of ... probation ... by any person in this state on ... probation .... [¶] (2) To the escape of any ... ward from a state or local institution. [¶] (3) To the transportation of persons on ... probation .... [¶] (4) To violations of any penal provisions of law which are discovered while performing the usual or authorized duties of the officer's employment. [¶] (5) [¶] (A) To the rendering of mutual aid to any other law enforcement agency...." (§ 830.5, subd. (a)(1)-(5).) Defendant maintains the authority extended under section 830.5, subdivision (a)(4), to violations of any penal provisions of law discovered while probation officers are performing their duties extends only for the purpose of carrying out the primary function of their employment—which is supervision of probation, not criminal investigation.
The plain language of the statute expressly extends peace officer authority to a probation officer conducting a probation compliance search where violations of the law are discovered. (Pen. Code, § 830.5, subd. (a)(4).) While it is true the statute does not empower probation officers to investigate crimes generally, defendant offers no authority for his argument probation officers may not act as peace officers to investigate apparent violations of the law discovered during a probation search. It is possible probation officers conducting routine compliance searches may discover crimes the investigation of which would necessarily carry them far afield of their primary employment functions and duties as probation officers. In such situations, seeking the engagement of other law enforcement agencies for further investigation may be warranted, necessary, and required. Probation searches that uncover, for example, evidence of human trafficking would almost certainly require investigation by a different law enforcement agency because it would likely involve individuals and activities beyond the parameters of the probation search. However, whether this type of investigation is beyond a probation officer's authority as a peace officer under Penal Code section 830.5 is not presented here.
In this case, the firearm and ammunition were discovered during a routine compliance search, a search that is among the regular duties and functions of a probation officer. To investigate the violation of probation, the officers necessarily investigated the overlapping violations of law. The illegal possession crimes discovered were extremely limited in scope and location, and they did not involve investigation beyond the premises subject to the probation search or involve individuals outside the search premises. This situation fits squarely within probation officers' authority as peace officers under Penal Code section 830.5, subdivision (a)(4).
Moreover, the circumstances here are analogous to those probation officers confronted in People v. Rios (2011) 193 Cal.App.4th 584 (Rios). There, during a routine probation search, officers were performing a protective sweep of premises where the juvenile probationer lived when they encountered an individual (Rios) who posed a safety concern. (Id. at pp. 589-590.) Upon further investigation and search of Rios, probation officers discovered a firearm and Rios ultimately pleaded guilty to illegally possessing a firearm and resisting arrest. (Id. at pp. 588, 590.) On appeal, a panel of this court held the probation officers were acting within the scope of their authority as peace officers under Penal Code section 830.5, subdivision (a)(1), with respect to the probationer, which included the right to detain Rios and, as the situation developed, to frisk him for weapons. (Rios, supra, at p. 600.) Thus, the illegal firearm was discovered while the officers were performing the "'authorized duties of [their] employment'" under section 830.5, subdivision (a)(4). (Rios, supra, at p. 600, quoting § 830.5, subd. (a)(4).) The court concluded that to "hold otherwise would mean that juvenile probation officers could not detain or investigate anyone on the same premises as the juvenile probationer, no matter the circumstances or officer safety issues, unless they were accompanied by police or other law enforcement officers." (Rios, supra, at p. 600.) The court declined "to give section 830.5, subdivision (a) such a limited, unreasonable reading." (Ibid.)
By analogy, defendant is urging a similarly restrictive interpretation of Penal Code section 830.5, subdivision (a), which would prohibit probation officers from investigating a violation of the law unless they are accompanied by other law enforcement officers. As this court held in Rios, that is not a reasonable interpretation of section 830.5, subdivision (a). There is no disputing the probation officers here discovered the firearm and ammunition inside the scope of their primary employment duties and functions, thus they were acting within the statutory ambit of their authority as peace officers. Further, because the discovery during their search revealed a violation of law the investigation of which did not extend past the search premises, section 830.5, subdivision (a)(4), expressly extended their authority as peace officers to investigate that violation. Defendant has not established the officers acted beyond their authority as peace officers by investigating the discovery of the firearm and ammunition at defendant's residence.
Defendant contends Rios does not support an assertion that once having found the illegal firearm, the probation officers were then permitted to assume law enforcement's place on the district attorney's team in the prosecution of the criminal case. (See Rios, supra, 193 Cal.App.4th at pp. 598-600.) This argument, however, conflates what the probation officers were empowered to investigate during the probation search in their role as peace officers under Penal Code section 830.5 with how that investigation was used by the prosecution to file charges and present the case to the jury. In the latter respect, we consider defendant's contentions below.
B. Separation of Powers
1. Defendant's Arguments
Defendant argues the error caused by probation officers performing a criminal investigation into the charged conduct here caused a violation of the separation of powers doctrine. Defendant notes that without another investigating law enforcement agency, the prosecutor made probation officers a part of the prosecution's team for purposes of trial. Officer Robles was designated as the investigating officer under Evidence Code section 777, all of the prosecution's witnesses were probation officers, the probation report generated after the search was referred to as a "police report," and the prosecutor referred to defendant's probation officer as "my officer." Defendant maintains the investigation by probation, and the use of that investigation at trial, caused an arm of the court (i.e., probation) to usurp functions that are in the exclusive province of the executive branch.
2. Separation of Powers Doctrine
"The California Constitution establishes a system of state government in which power is divided among three coequal branches (Cal. Const., art. IV, § 1 [legislative power]; Cal. Const., art. V, § 1 [executive power]; Cal. Const., art. VI, § 1 [judicial power]), and further states that those charged with the exercise of one power may not exercise any other (Cal. Const., art. III, § 3)." (People v. Bunn (2002) 27 Cal.4th 1, 14.) The primary purpose of the separation of powers doctrine "'is to prevent the combination in the hands of a single person or group of the basic or fundamental powers of government'" (Manduley v. Superior Court (2002) 27 Cal.4th 537, 557), as well as to avoid overreaching by one governmental branch against another (People v. Bunn, supra, at p. 16). While there is some interdependence among the branches, the Constitution "does vest each branch with certain 'core' [citation] or 'essential' [citation] functions that may not be usurped by another branch." (People v. Bunn, supra, at p. 14.) This separation of powers does not, however, require "'a hermetic sealing off of the three branches of Government from one another.'" (Hustedt v. Workers' Comp. Appeals Bd. (1981) 30 Cal.3d 329, 337.) Instead, it is violated "only when the actions of a branch of government defeat or materially impair the inherent functions of another branch." (In re Rosenkrantz (2002) 29 Cal.4th 616, 662.)
3. No Violation of the Separation of Powers Doctrine
Defendant cites County of Placer v. Superior Court (2005) 130 Cal.App.4th 807, 814 (County of Placer) for the proposition "the probation department must remain independent of prosecuting authorities" and argues that independence was not maintained here. For that basic proposition, however, County of Placer cited this court's decision in People v. Villarreal (1977) 65 Cal.App.3d 938, 945, where there was evidence a district attorney met privately with the county's chief probation officer to demand the probation department change a sentencing recommendation in a pending case to suit the wishes of the district attorney. The "gross impropriety" at issue in People v. Villarreal, supra, at page 944, bears no resemblance to the circumstances of this case. There is no evidence the probation search was conducted at the behest of the prosecutor or another law enforcement agency or evidence of impropriety on the part of the probation officers.
County of Placer itself involved revocation proceedings where the probationer subpoenaed the probation department's records of his supervision, which the probation department attempted to quash. (County of Placer, supra, 130 Cal.App.4th at pp. 809-810.) After concluding the records were subject to subpoena, the appellate court noted the record contained discussion whether the probation department was part of the "'prosecution team'" for purposes of discovery. (Id. at pp. 813-814.) The court found the "'prosecution team'" concept was not controlling because while the probation department had played an investigatory role with respect to the alleged violations of probation, in supervising the probationer and in compiling those records, the department had acted as an arm of the court. (Id. at p. 814.) Relevant here, the court's discussion in this regard articulated well how the probation department may work as an investigatory agency for certain law enforcement purposes while also serving as an arm of the court separate from the prosecuting authorities in other regards. (Ibid.) That dual role does not restrict probation in its law enforcement capacity from investigating probation violations which also reveal violations of the law (Pen. Code, § 830.5, subd. (a)(4)), nor does probation's separate role serving the court restrict prosecuting authorities from using the fruits of a probation search as evidentiary support for new criminal charges or calling probation officers to testify at trial on those charges. While probation officers serve different roles, defendant has not established how probation's law enforcement role in investigating the discovery of the firearm and ammunition during a valid probation search impermissibly trod on the powers of the prosecutor, as a function of the executive branch, to determine the investigation of crime, what charges to file, and whom to charge. (People v. Eubanks (1996) 14 Cal.4th 580, 589 [district attorney's discretionary executive powers extend from investigation of and gathering of evidence related to criminal offenses through decisions of whom to charge and what charges to bring]; see Manduley v. Superior Court, supra, 27 Cal.4th at p. 552 [observing generally that prosecutors in the exercise of executive functions have sole discretion to determine whom to charge with public offenses and what charges to file].)
As for defendant's citation to People v. Simpson (2014) 223 Cal.App.4th Supp. 6, there is no relevant application to this case. There, the defendant was charged with two violations of the Vehicle Code. (Simpson, supra, at p. 8.) During a trial de novo conducted by the court, the court sua sponte added another charge of a third violation of the Vehicle Code based on testimony from the officer who wrote the initial citation, found the defendant guilty of both original charges as well as the additional charge the court itself had added, and imposed a fine. (Simpson, supra, at p. 9.) On appeal, the conviction for the additional charge added by the trial court was reversed. (Id. at pp. 9-10.) The appellate court held the trial court usurped the prosecutor's discretionary power to control the institution of criminal proceedings and violated the separation of powers by sua sponte adding a charge to the complaint. (Id. at p. 10.) Other than serving as an example of usurpation by a court of executive powers, there is no application of Simpson to the facts of this case. There is no evidence here the court or probation pressed the prosecutor to charge defendant based on the probation search.
As noted above, the separation of powers doctrine is violated "only when the actions of a branch of government defeat or materially impair the inherent functions of another branch." (In re Rosenkrantz, supra, 29 Cal.4th at p. 662.) We find no violation of the separation of powers doctrine with respect to probation's investigatory role or the prosecutor's election to support charges against defendant with evidence discovered during a probation search conducted solely by probation officers.
C. Conflict of Interest
Defendant argues because the probation department assists the court with regard to sentencing and supervising probationers, the probation officers' investigation of the crimes charged by the district attorney created an untenable institutional conflict of interest.
"[N]otwithstanding the probation department's ties to the court, the probation officers and employees' significant responsibilities to enforce the law and assist law enforcement distinguish them from ordinary court employees .... And though both probation and parole officers share an interest in the parolees' or probationers' rehabilitation, this does not diminish their law enforcement role. Like parole officers, probation officers will sometimes '"act like police officers and seek to uncover evidence of illegal activity ...."'" (People v. Ferguson (2003) 109 Cal.App.4th 367, 375.) Probation officers' dual roles are well recognized, yet they are statutorily empowered to act as peace officers under certain conditions, despite their role supervising probationers and assisting the court.
Defendant has not established a conflict of interest resulting from probation officers testifying or shown how such a conflict affected him. Though defendant cites Ferguson v. City of Charleston (2001) 532 U.S. 67, that case involved a public hospital's nonconsensual testing of pregnant mothers for drug use for the primary purpose of law enforcement (id. at pp. 82-84). The facts here share no commonality with Ferguson v. City of Charleston—the search in this case was a routine probation compliance search to which defendant had consented and did not challenge. There is no evidence probation officers here were tasked with deciding whether new charges should be filed as a result of the search, or in any way instigated the filing of criminal charges, and none of the probation officers who testified against defendant were involved in the sentencing recommendations to the court after defendant's conviction.
Defendant argues an institutional conflict is created by "embroiling an agency of the court in the very adversarial proceeding that the court is attempting to (neutrally and objectively) adjudicate." Yet, as we discuss below, the connection between the court and the probation department was not emphasized in any respect before the jury. There was no improper type of vouching for the probation officers' testimony due to their connection with the court, and the ways in which probation as a department interacts and assists the court was never placed before the jury. On this record, defendant has not affirmatively shown how the probation officers or the court had a conflict of interest that prejudiced defendant or impacted the fairness of the trial proceedings.
D. Federal Due Process
The contours of defendant's due process argument are not altogether clear. Defendant argues "the error affected every aspect of the proceedings, depriving [defendant] of a fair trial," and then defendant discuses three purported consequences of that error: defendant's probation status became the focus of the trial, unusual discovery issues arose, and the prosecution's witnesses' testimony was imprecise. The error to which defendant refers stems from the claimed impropriety of the probation officers' investigation of the firearm and ammunition. The People maintain defendant has failed to establish anything improper about the probation search or the prosecution's use of probation officers as witnesses at trial.
As a threshold matter and as discussed above, no state law error was established by probation's investigation or the prosecutor's use of the probation search as evidence of the charged crimes. Defendant's similar and related claims of federal due process violations are likewise unpersuasive. Defendant argues his probation status became the focus of the trial because probation officers, rather than some other law enforcement agency, investigated the charged crimes, and this infected his trial with fundamental unfairness. Not so. Defendant's theory of defense placed his probation history at issue, not because the fruits of a probation search were used as evidence of the charged crimes. Defendant testified he did not live at the Oregon Street apartment and did not have access to the bedroom where officers discovered the firearm and ammunition, which supported his defense theory the firearm and ammunition were not his, he did not know about them, and he did not have access to them. These contentions were contrary to what defendant had represented to probation during his supervision, and it was inconsistent with prior compliance searches. A trial is not fundamentally unfair simply because a defense theory renders damaging evidence relevant that the prosecution then places before the jury.
Even if the admission of evidence related to defendant's probation status were error under state law—which it was not—such an error would still not constitute a deprivation of federal due process here. The admission of evidence, even if erroneous under state law, does not offend due process unless it is so prejudicial as to render the proceedings fundamentally unfair. (People v. Albarran (2007) 149 Cal.App.4th 214, 229.) Defendant contends testimony related to his probation status invited the jury to believe he was potentially dangerous, since he needed close monitoring, and that the charges must be true because his probation officer testified. The jury knew defendant had previously committed a felony; the jury was informed of the parties' stipulation that defendant was a convicted felon, and defendant's prior felony conviction was an element of both charges on which the jury was instructed. Defendant's status as a probationer was a logical extension of his felony conviction, no details about the underlying felony or the probation were offered, and the jury was instructed not to speculate about or discuss the nature of the underlying felony conviction. The basic fact defendant was under supervised probation and subject to intermittent and routine compliance searches did not invite improper speculation or a purely irrational response by the jury. (See People v. Winbush (2017) 2 Cal.5th 402, 464 [evidence that invites a purely irrational response from the jury or is so unduly prejudicial as to render the trial fundamentally unfair will violate federal due process rights].) The probation officer's testifimony for the prosecution may have been damaging to defendant's credibility and his case, but the strength of the prosecution's witnesses does not translate into fundamentally unfair proceedings.
Defendant has also failed to establish an error with regard to discovery issues. During his testimony, Officer Gomez refreshed his recollection about prior search dates at the Oregon Street apartment by reviewing a probation discovery report, which was an internal probation department document that recorded the dates and notes from home compliance searches and visits conducted by probation officers. Robles was also questioned about this report on cross-examination after a copy was provided to the defense. Defendant contends that if a law enforcement agency other than probation had conducted the underlying investigation of the charged crimes, this document would have been obtained as part of the investigation and disclosed to the defense long before trial. However, because probation conducted the investigation, defendant argues the records were not referenced by Robles in her report or provided to the prosecution and remained third party records not subject to regular discovery mechanisms.
At the time of the search and the investigation of the subsequently charged conduct, there was no indication past records related to defendant's probation supervision were relevant. At that time, neither defendant nor Cerda asserted defendant did not live at the Oregon Street apartment, and they did not indicate the bedroom searched was not accessible to defendant. Rather, defendant confessed he had purchased the gun and it was his, and Cerda claimed she had no knowledge of the gun or where it came from. Who purchased the firearm and who had access to it in that bedroom were not disputed. In these circumstances, defendant fails to explain how a different law enforcement agency would necessarily have sought the call logs of past compliance searches or that probation would necessarily have been required to provide the record. Further, there is no showing the failure to disclose this document unfairly prejudiced the presentation of defendant's case. Defendant makes no argument anything contained in the probation discovery notes was material, exculpatory evidence. The notes merely confirmed what defendant already knew: he had been subject to numerous prior compliance searches at the Oregon Street apartment because he had reported that consistently as his residence.
As to the purported lack of the probation officers' thoroughness in investigating the discovery of the firearm and ammunition, it is unclear how this harmed defendant or affected the fairness of the trial. The thoroughness of the officers' search and Robles's report were issues on which defense counsel cross-examined the witnesses and, in closing argument, defense counsel argued at length the jury could not trust the investigation because it was poorly conducted. Testimony about the investigation and whether the evidence from the search, including Robles's report of the search, were trustworthy and credible was before the jury for its evaluation and consideration, and the jury was instructed on how to judge the credibility or believability of the witnesses and its duty to weigh the evidence.
Defendant's remaining arguments pertain to how the probation officers participated in the trial as part of the prosecution team. Defendant notes the prosecutor identified Robles as "my officer," and described Robles's report of the probation search as a "police report," and designated Robles as the investigating officer under Evidence Code section 777, which entitled her to remain at the prosecutor's table throughout the trial regardless that she was a percipient witness. Defendant argues this turned the probation officers into agents of the prosecution. Although addressed by defendant as error under Penal Code section 830.5, these issues do not relate to the scope of a probation officer's authority as a peace officer under section 830.5. Rather, they center on the particular role probation officers played here in assisting the prosecutor at trial while also having acted as an arm of the court in supervising defendant on probation. Defendant's argument suggests probation officers' participation at trial created a picture for the jury that a part of the court itself—through the probation officers—was commenting on defendant's guilt, which affected the fundamental fairness of the trial.
Yet, considering the probation officers' participation at trial as witnesses and Robles's designation as lead investigator, defendant has failed to establish how he was unfairly prejudiced. As for the prosecutor's reference to Robles as "my officer" and to her postsearch report as a "police report," defendant cites no instance where those references were made in the jury's presence. And, even if such statements were made before the jury, these mistaken or colloquial references did not prejudicially emphasize the probation department's role with the court nor did they constitute some species of improper vouching. (Cf. People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [prosecutor prohibited from vouching for credibility of witness, bolstering veracity of witness testimony by referring to evidence outside the record, or placing the prestige of her office behind a witness by offering impression she has taken steps to assure the witness's truthfulness at trial].)
The evidence before the jury regarding the probation department's connection to the court was negligible and not unfairly prejudicial. Lafebre testified her job duties required ensuring probationers' compliance with terms and conditions mandated by the court, and Robles testified she supervised individuals ordered into probation by the court. It was defendant himself who attempted to emphasize the relationship between probation and the court by asking Lafebre if the probation department was part of the court, to which she responded the probation department was its own entity and probation officers were employees of the county. This testimony was innocuous and, even if there were some error in permitting testimony about probation's relationship to the court, defendant cannot complain about testimony he elicited. (See People v. Duncan (1991) 53 Cal.3d 955, 969 [doctrine of invited error precludes defendant from securing reversal for error made at the defendant's behest].)
Defendant also cites no authority for the proposition probation officers may not testify in court proceedings, even to the extent those probation officers have supervised the defendant while on probation. As for designating Robles as the investigating officer under Evidence Code section 777, we agree with the People no objection was made to that designation at trial and any argument such a designation was improper was not preserved for appeal. (People v. Hawkins (2012) 211 Cal.App.4th 194, 203 [on appeal of trial court's order, appellate court generally considers only those arguments raised before the trial court].) Moreover, because Robles's job duties and functions as a probation officer were presented to the jury in a very limited manner, there was nothing for the jury to improperly consider about her connection to the court through her duties as a probation officer. Absent any undue emphasis of her relationship with the court as a probation officer, Robles's designation and participation at the counsel's table during the trial did not constitute any species of vouching of her testimony as a percipient witness by either the prosecutor or the court itself.
Evidence Code section 777, subdivision (c), provides that "[i]f a person other than a natural person is a party to the action, an officer or employee designated by its attorney is entitled to be present." The word "'person'" includes a "public entity" (Evid. Code, § 175) such as the People of the State of California, and the district attorney is permitted to designate an officer or employee under Evidence Code section 777, subdivision (c). (People v. Gonzalez (2006) 38 Cal.4th 932, 950-951.) This practice of permitting some officer, active in the prosecution of the case, to remain in the trial for the purpose of advising the district attorney as to the facts, the interest and character of the witnesses, etc., has long been deemed proper by the courts. (People v. Boyden (1953) 116 Cal.App.2d 278, 283-284.) In the event there is an allegation of abuse of that privilege or an assertion the designated witness's presence may be prejudicial, such objection must be brought to the attention of the trial court so that any issue may be addressed and corrected at that time. (Id. at p. 284.) Where no charge of prejudice or abuse is made in the trial court, it "cannot be considered when made for the first time in the appellate tribunal." (Ibid.)
None of these issues, whether considered separately or cumulatively, rendered defendant's trial fundamentally unfair. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549 [it is appellant's burden to affirmatively demonstrate error].) III. Senate Bill No. 136
Senate Bill No. 136 (2019-2020 Reg. Sess.) ch. 590, § 1 (Senate Bill No. 136 or Sen. Bill No. 136).
As noted above, the trial court found true defendant had suffered two prior prison terms for which the court imposed a one-year sentence enhancement. (Pen. Code, § 667.5, former subd. (b).) In supplemental briefing, defendant contends this one-year enhancement imposed pursuant to section 667.5, subdivision (b), must be stricken in light of Senate Bill No. 136, which amended section 667.5, subdivision (b), effective January 1, 2020. (See Cal. Const., art. IV, § 8, subd. (c).) The People concede this one-year enhancement under section 667.5, subdivision (b), should be stricken.
Pursuant to Penal Code section 667.5, subdivision (a), which remains unchanged, courts are required to impose a three-year sentence for each prior separate prison term served by the defendant where the prior and current offenses were violent felonies, as defined in subdivision (c) of section 667.5. As to other types of felonies, section 667.5, former subdivision (b), imposed an additional one-year term for each prior separate prison term or county jail felony term, except under specific circumstances. The amended section 667.5, subdivision (b), now imposes that additional one-year term only for each prior separate prison term served for a conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b).
In accordance with the California Supreme Court's decision in In re Estrada (1965) 63 Cal.2d 740, 744, "'"[a]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date" [citation], unless the enacting body "clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent" [citations].'" (People v. Lara (2019) 6 Cal.5th 1128, 1134, quoting People v. DeHoyos (2018) 4 Cal.5th 594, 600.) The parties agree that Senate Bill No. 136 is retroactive under Estrada and, therefore, the amendment to Penal Code section 667.5, subdivision (b), applies in this case.
The parties also agree defendant's prior felony convictions for possession of a controlled substance for the purpose of sale (Health & Saf. Code, § 11378) and false imprisonment (Pen. Code, § 236), the sentences for which were served concurrently, are not qualifying offenses under Penal Code section 667.5, subdivision (b), as amended. We accept the People's concession on both points and order defendant's one-year prior prison term enhancement stricken.
Pursuant to Penal Code section 667.5, subdivision (g), "'a defendant who has served concurrent or consecutive prison sentences on various commitments is deemed to have served only one prior prison term for the purpose of the enhancement provisions of ... section 667.5.'" (People v. Grimes (2016) 1 Cal.5th 698, 739.)
DISPOSITION
Pursuant to Senate Bill No. 136, the matter is remanded to the trial court to strike the one-year prior prison term enhancement, with instructions to prepare an amended abstract of judgment so reflecting, and forward the amended abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
POOCHIGIAN, J.