People v. Gutierrez CA6 ( 2021 )

Filed 4/28/21 P. v. Gutierrez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047384
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS170495A)
v.
CHARLES GUTIERREZ,
Defendant and Appellant.
A jury convicted defendant Charles Gutierrez of willful, deliberate, and
premeditated first degree murder. (Pen. Code, §§ 187, 189.1) The jury found true
allegations that, in the commission of the murder, defendant personally and intentionally
discharged a firearm, causing death (§ 12022.53, subd. (d)) and that defendant committed
the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1) & (5)).
Defendant admitted he had served a prior prison term. (§ 667.5, subd. (b).)
Defendant was sentenced to an indeterminate term of 25 years to life for the
murder and a consecutive indeterminate term of 25 years to life for the firearm allegation,
for an aggregate prison term of 50 years to life. The trial court stayed or struck the prior
prison term enhancement.
On appeal, defendant contends the trial court erred by failing to instruct the jury
that a witness referred to as “John Doe Three” was an accomplice as a matter of law.
Defendant also requests this court independently review the sealed transcripts from an
1
Unspecified section references are to the Penal Code.
in camera hearing. Additionally, defendant contends—and the Attorney General
concedes—that the prior prison term enhancement should be stricken.
As explained herein, the trial court did not prejudicially err by declining to instruct
the jury that John Doe Three was an accomplice as a matter of law. We find defendant
forfeited any objection to the trial court’s ruling following the in camera hearing, and in
any event we find no error based on our own review of the sealed transcript of the in
camera hearing. The record is unclear as to whether the trial court stayed or struck the
prior prison term enhancement, so for clarity we will order that enhancement stricken.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Shooting of Eliot Cerna
On August 7, 2015, Eliot Cerna, age 22, was visiting some of his family at a
Salinas trailer park: his cousins, John Doe One and John Doe Two; his aunt, Azucena
Cerna; and Azucena’s brother-in-law, Francisco Garcia. At the time, John Doe One was
an adult; John Doe Two was 10 years old.
At some point in the evening, the three cousins left to go get food. John Doe One
drove Azucena’s white Honda. Eliot was in the front passenger seat and John Doe Two
was in the back of the car.
John Doe One had grown up with friends who were Sureño gang members, and he
had a criminal history that included several felony convictions. John Doe One was aware
that some Norteño gang members, including Antonio Torres, lived in the trailer park.
When the Honda passed by the Torres family’s trailer, some males approached. A
person on the passenger side of the Honda asked the cousins if they “bang[ed]” and told
John Doe One to roll the window down. John Doe One heard a banging sound from the
back of the car, and he tried to drive away. He then heard a shot and saw broken glass.
He did not see the shooter’s face.
John Doe Two similarly heard someone approach the passenger side of the Honda
and ask if the cousins “bang[ed].” That person was the shooter. The shooter touched the
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car above the passenger side window, in an apparent attempt to stop the car from driving
away.
John Doe One realized Eliot had been shot, so he drove to the hospital. An
autopsy determined that Eliot had suffered a penetrating gunshot wound that entered and
exited his arm and then entered his torso, where it perforated several organs and caused
his death.
B. Investigation
A trajectory reconstruction revealed two bullets had been fired into the Honda
from the area near the passenger side front door.
Fingerprints were lifted from the Honda. Two prints found on the passenger side
roof line matched defendant’s left middle finger and left ring finger. One print matched
Francisco Garcia. Three other prints did not match “anyone in the system.”
Azucena did not know defendant. She always parked her Honda next to her
trailer. Garcia was with her on the night of the shooting, from the time the three cousins
left the trailer until she went to the hospital.
Defendant was a cousin of the Torres family. When his fingerprints came back as
a match from the Honda, the police strongly suspected him to be the shooter but
continued to investigate. Defendant was arrested after John Doe Three, an in-custody
informant, provided further information.
C. Testimony of John Doe Three
At the time of trial, John Doe Three was in custody. In one pending case, he had
been charged with premeditated and deliberate attempted murder, with a gang allegation
and personal firearm use allegation, but he had reached an agreement with the District
Attorney’s office: he would plead guilty to assault with a semiautomatic firearm (§ 245,
subd. (b)) and active participation in a criminal street gang (§ 186.22, subd. (a)), and
admit a personal firearm use allegation. If John Doe Three testified truthfully at
defendant’s trial, he would face a maximum of 12 years in prison. If John Doe Three
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failed to comply with the agreement, the original charges could be reinstated and he
would face a life term. In a second pending case, John Doe Three faced charges of
conspiracy (§ 182, subd. (a)) and assault by means of force likely to produce great bodily
injury (§ 245, subd. (a)(4)) with two strike allegations. John Doe Three had reached a
further agreement with the District Attorney’s office: he would plead to the assault
charge and admit one strike, and he would face up to an additional two years in prison.
John Doe Three considered himself a “[d]rop out” Norteño gang member. He
explained that in order to maintain active status, a gang member must commit crimes.
Norteños are encouraged to commit violent crimes against Sureños. When a gang
member asks, “What do you bang,” an inadequate answer will often result in violence.
On the night that Eliot was shot, John Doe Three was at the Torres residence.
Antonio Torres, his best friend, had been murdered, and about 20 people were present for
a celebration of life. Defendant, known as “Trigger,” was present. Both defendant and
John Doe Three had guns.
John Doe Three believed John Doe One to be a Sureño, and the group that was
gathered at the Torres residence talked about being suspicious of John Doe One when he
drove by the Torres residence more than once that evening.
Just before the shooting, John Doe One drove past the Torres residence and
slowed down because of a speed bump. Several people approached and asked where he
was from. Most of the group remained on the driver’s side of the Honda, but defendant
approached the passenger side. When John Doe One responded that “he didn’t bang,”
defendant reached into the car and fired his gun.
As the Honda started to drive away, defendant placed his body on the car, holding
onto the car door with one hand, in an apparent attempt to stop it from leaving. After the
shooting, John Doe Three and others cleaned up the glass from the broken car window.
John Doe Three acknowledged that he knew that violence will occur “when a
group of Norteños goes and confronts and hits up a group of Sureños.” He acknowledged
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that he had his hand on his gun at the time he approached the Honda, “in case . . .
something happen[ed].”
D. Gang Evidence
The parties stipulated that defendant was an active member of the Salinas East
Market subset of the Norteño gang. They stipulated that the Norteños are a criminal
street gang, as defined in section 186.22, and that Norteños engage in a pattern of
criminal activity that includes committing murders, assaults, robberies, carjackings,
burglaries, illegal gun possession, and narcotics sales.
The stipulation referenced evidence of defendant’s active membership in the gang:
his own admissions, his gang-related tattoos, his association with other Norteño gang
members, and his housing in a Norteño jail unit. A gang expert testified that defendant’s
specific tattoos not only showed his membership in the Salinas East Market subset, but
that he had “put in work” for the gang, meaning he had committed a violent act or a
significant crime that benefitted the gang.
The gang expert testified that in 2015, there was a high rate of violence stemming
from the rivalry between Norteño and Sureño gang members in Salinas. He opined that
gang members will often lash out at rivals after a member of their own gang has been
murdered, even if the rival gang was not responsible for the murder. Gang members will
ask, “What do you bang” or “Where are you from” when they perceive someone to be a
gang member. “It’s just something they say prior to assaulting them or causing harm.”
Gang members often commit crimes in front of others in order to gain status. Gang
members who “snitch” are likely to get physically harmed or killed.
When a Norteño kills a Sureño, it benefits the Norteño gang in several ways.
First, there is “one less rival gang member” who could assault or kill a Norteño gang
member. Second, the murder instills fear in the community and the rival gang. Third, the
reputation of the Norteño gang is enhanced, enabling the gang to recruit younger
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members. And fourth, the murder may allow the Norteño gang to sell drugs or commit
other crimes in a neighborhood “without any competition.”
D. Verdicts and Sentence
A jury convicted defendant of willful, deliberate, and premeditated first degree
murder. (§§ 187, 189.) The jury found true allegations that in the commission of the
murder, defendant personally and intentionally discharged a firearm, causing death
(§ 12022.53, subd. (d)) and that defendant committed the murder for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1) & (5)). Defendant admitted he had served a
prior prison term. (§ 667.5, subd. (b).)
Defendant was sentenced to an indeterminate term of 25 years to life for the
murder and a consecutive indeterminate term of 25 years to life for the firearm allegation,
for an aggregate prison term of 50 years to life. The trial court stayed or struck the prior
prison term enhancement.
II. DISCUSSION
A. Failure to Instruct that John Doe Three was an Accomplice as a Matter of Law
Defendant contends the trial court prejudicially erred by failing to instruct the jury
that John Doe Three was an accomplice as a matter of law, whose testimony could be
used to convict defendant only if it was supported by independent corroborating
evidence. Defendant asserts that John Doe Three was an accomplice under both a “direct
aider and abettor” theory as well as the “natural and probable consequences doctrine.”
He contends that the instructional error violated his rights to due process and a fair trial
under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution.
1. Trial Court Proceedings
Defendant requested that the trial court instruct the jury that John Doe Three was
an accomplice as a matter of law. (See CALCRIM No. 335.) The People argued that
John Doe Three was “not an accomplice” and thus that no accomplice instruction should
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be given. The trial court tentatively indicated it would give “the accomplice not as a
matter of law instruction” (see CALCRIM No. 334) “and let the jury decide.”
Defendant argued that John Doe Three was an accomplice as a matter of law
because he knew that armed gang members were approaching the car with the intent to
stop the car, confront the driver, and commit a violent act on the driver; and because John
Doe Three had participated in the attempt to stop the car and had been ready to shoot.
The trial court rejected defendant’s argument, explaining, “That would mean
everyone who was there that was armed could be prosecuted for murder.” The trial court
acknowledged John Doe Three had testified about having had his hand on his gun and
about knowing that “violence was about to happen.” However, the trial court found, John
Doe Three’s testimony also indicated he was concerned about needing to defend himself
or a fellow Norteño gang member. Ultimately, the trial court believed, the issue of
whether John Doe Three was engaging in “offensive or defensive” actions was “a
question of fact for the jury to decide.”
Pursuant to CALCRIM No. 334, the trial court instructed the jury as follows:
“Before you may consider the testimony of (John Doe Three) as evidence against the
defendant, you must decide whether (John Doe Three) was an accomplice to the crime of
murder.
“A person is an accomplice if he or she is subject to prosecution for the identical
crime charged against the defendant.
“Someone is subject to prosecution if: One, he or she personally committed the
crime; or two, he or she knew of the criminal purpose of the person who committed the
crime; and, three, he or she intended to and did in fact aid, facilitate, promote, encourage
or instigate the commission of the crime.
“The burden is on the defendant to prove that it is more likely than not that (John
Doe Three) was an accomplice.
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“An accomplice does not need to be present when the crime is committed. On the
other hand, a person is not an accomplice just because he or she is present at the scene of
a crime, even if she or he knows that a crime will be committed or is being committed
and does nothing to stop it.
“A person may be an accomplice even if he or she is not actually prosecuted for
the crime.
“If you decide a witness was not an accomplice, then supporting evidence is not
required, and you should evaluate his or her testimony as you would that of any other
witness.
“If you decide that a witness was an accomplice, then you may not convict the
defendant of murder based on his or her testimony alone.
“You may use testimony of an accomplice that tends to incriminate the defendant
to convict the defendant only if: One, the accomplice’s testimony is supported by other
evidence that you believe; two, that supporting evidence is independent of the
accomplice’s testimony; and, three, that supporting evidence tends to connect the
defendant to the commission of the crime.
“Supporting evidence, however, may be slight. It does not need to be enough by
itself to prove that the defendant is guilty of the charged crime, and it does not need to
support every fact about which the accomplice testified.
“On the other hand, it is not enough if the supporting evidence merely shows that a
crime was committed or the circumstances of its commission.
“The supporting evidence must tend to connect the defendant to the commission of
the crime.
“Any testimony of an accomplice that tends to incriminate the defendant should be
viewed with caution. You may not, however, arbitrarily disregard it. You should give
that testimony the weight you think it deserves after examining it with care and caution
and in light of all the other evidence.”
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During argument to the jury, the prosecutor called John Doe Three the “most
important witness.” The prosecutor acknowledged that John Doe Three had been armed
and present during the shooting.
Defendant argued that the jury should find that John Doe Three was an
accomplice. Defendant argued that John Doe Three knew that the driver of the Honda
was a Sureño and that after the driver was asked “what he bangs,” John Doe Three knew
that “someone was about to get shot.” Defendant argued that by standing in front of the
Honda to “make it stop,” John Doe Three was aiding the murder.
Defendant then argued that John Doe Three’s testimony was not corroborated by
any other evidence. In fact, defendant argued, John Doe Three’s testimony conflicted
with other evidence. For instance, John Doe Three testified that defendant reached into
an open window of the Honda to shoot, but the shattered car window showed that the
shots were fired from outside the car when the window was still rolled up.
In closing argument, the prosecutor asserted that John Doe Three was “not an
accomplice to murder.” She argued, “Mere presence at a crime scene does not make
someone an accomplice.” At most, she asserted, John Doe Three’s assistance in cleaning
up the broken glass made him an accessory after the fact. The prosecutor further argued
that even if the jury found that John Doe Three was an accomplice, his testimony was
corroborated by John Doe Two’s testimony and the evidence showing that defendant’s
fingerprints were found on the Honda.
2. Applicable Law
Section 1111 provides: “A conviction can not be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense; and the corroboration is not sufficient if it
merely shows the commission of the offense or the circumstances thereof. An
accomplice is hereby defined as one who is liable to prosecution for the identical offense
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charged against the defendant on trial in the cause in which the testimony of the
accomplice is given.”
The evidence corroborating an accomplice’s testimony “may be slight, entirely
circumstantial, and entitled to little consideration when standing alone. [Citations.] It
need not be sufficient to establish every element of the charged offense or to establish the
precise facts to which the accomplice testified. [Citations.] It is ‘sufficient if it tends to
connect the defendant with the crime in such a way as to satisfy the jury that the
accomplice is telling the truth.’ ” (People v. Valdez (2012) 55 Cal.4th 82, 147-148.)
“Whether a person is an accomplice within the meaning of section 1111 presents a
factual question for the jury ‘unless the evidence permits only a single inference.’ ”
(People v. Williams (1997) 16 Cal.4th 635, 679 (Williams).) A trial court may instruct
the jury that a particular witness is an accomplice if “the facts regarding the witness’s
criminal culpability are ‘clear and undisputed’ ” (id. at p. 679) but correctly leaves the
question for the jury if the evidence of the witness’s criminal culpability is “not so clear
and undisputed that a single inference could be drawn that [he or she] would be liable for
the ‘identical offense[s]’ charged against [the] defendant.” (Id. at p. 680.)
3. Analysis
“Whether or not to give any particular instruction in any particular case entails the
resolution of a mixed question of law and fact,” which is a “predominantly legal”
question that “should be examined without deference” under the de novo standard of
review. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
i. Direct Aiding and Abetting
Defendant first argues that John Doe Three was a direct aider and abettor to the
murder: that is, a person who “with (1) knowledge of the unlawful purpose of the
perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the
commission of the offense, (3) by act or advice aid[ed], promote[d], encourage[d] or
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instigate[d], the commission of the crime.” (See People v. Beeman (1984) 35 Cal.3d 547,
561.)
“Mere presence at the crime scene is, by itself, not aiding and abetting, but it can
be one factor among others that support conviction as an aider and abettor. [Citation.]
‘Among the factors which may be considered in determining aiding and abetting are:
presence at the crime scene, companionship, and conduct before and after the offense.’ ”
(People v. Sedillo (2015) 235 Cal.App.4th 1037, 1065 (Sedillo).)
Defendant contends that other cases have found that a person aided and abetted
murder on weaker facts than in this case. The two cases he discusses are of marginal
relevance, however, as neither involved the question of whether a person was an
accomplice as a matter of law. Both cases discussed whether the evidence was sufficient
to sustain the defendants’ convictions under an aiding and abetting theory. (See Sedillo,
supra, 235 Cal.App.4th at pp. 1065-1066; People v. Gonzales and Soliz (2011) 52 Cal.4th
254, 295-297.) In Sedillo, the defendant knew her codefendant was armed, participated
in surveilling the residence where the victims were shot, and drove the getaway car after
the shooting. (Sedillo, supra, at p. 1066.) In Gonzales and Soliz, not only did defendant
Gonzales know and share defendant Soliz’s intent to murder or assault the victims, but he
“acted to encourage the shootings by providing armed backup to Soliz.” (Gonzales and
Soliz, supra, at p. 295.)
In the instant case, the question is not whether the evidence supports a conviction
of John Doe Three as an aider and abettor, but whether the evidence establishing John
Doe Three’s criminal culpability for murder is “ ‘clear and undisputed.’ ” (See Williams,
supra, 16 Cal.4th at p. 679.) A reasonable jury could have found that John Doe Three
knew of defendant’s unlawful purpose; intended to encourage or facilitate the murder;
and aided, promoted, encouraged or instigated the commission of the murder by being
part of the group that approached the Honda and tried to stop it. However, a reasonable
jury also could have found that John Doe Three did not know of defendant’s unlawful
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purpose or intend to encourage or facilitate the murder. John Doe Three testified that he
was “suspicious” of John Doe One and that he had his hand on his gun “in case . . .
something happen[ed],” indicating he believed that John Doe One might initiate an
assault on the Norteño group, which would necessitate a defensive response. Because the
evidence did not “ ‘permit[] only a single inference,’ ” John Doe Three was not a direct
aider and abettor as a matter of law. (See Williams, supra, at p. 679.)
ii. Natural and Probable Consequences Doctrine
Asserting that he was charged with “generic murder under section 187,” defendant
next contends that John Doe Three was an accomplice as a matter of law under the
natural and probable consequences doctrine.
Defendant misreads the record. He was charged with and convicted of willful,
deliberate, and premeditated first degree murder under sections 187 and 189. “[N]atural
and probable consequences liability cannot extend to first degree premeditated murder
because punishing someone for first degree premeditated murder when that person did
not actually perpetrate or intend the killing is inconsistent with ‘reasonable concepts of
culpability.’ ” (People v. Gentile (2020) 10 Cal.5th 830, 838, quoting People v. Chiu
(2014) 59 Cal.4th 155, 165, 166.) John Doe Three cannot, therefore, be an accomplice as
a matter of law under this doctrine.2
iii. Corroboration/Prejudice
Even assuming the trial court was required to instruct the jury that John Doe Three
was an accomplice as a matter of law, there was no prejudice. “A trial court’s failure to
instruct on accomplice liability under section 1111 is harmless if there is sufficient
corroborating evidence in the record.” (People v. Lewis (2001) 26 Cal.4th 334, 370
2
Because we find the natural and probable consequences doctrine was not
applicable, we need not determine which version of the natural and probable
consequences doctrine would apply. (See Gentile, supra, 10 Cal.5th at pp. 842-843
[discussing Senate Bill No. 1437 (2017-2018 Reg. Sess.)].)
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(Lewis).) As noted previously, “ ‘[c]orroborating evidence may be slight, may be entirely
circumstantial, and need not be sufficient to establish every element of the charged
offense. [Citations.]’ [Citation.] The evidence ‘is sufficient if it tends to connect the
defendant with the crime in such a way as to satisfy the jury that the accomplice is telling
the truth.’ ” (Ibid.)
Defendant acknowledges that his fingerprints were found on the Honda,3 but he
points out that other fingerprints were found there as well. He suggests that a reasonable
juror could have found that defendant “had touched the car at some point” earlier in time
rather than during the shooting incident.
Defendant relies on People v. Robinson (1964) 61 Cal.2d 373. In Robinson, three
codefendants were convicted of murder. (Id. at p. 377.) The trial court had failed to
instruct the jury that one of the codefendants was an accomplice as a matter of law and
that his testimony implicating the other codefendants had to be corroborated. (Id. at
p. 394.) The California Supreme Court determined that there was insufficient
corroboration as to one of the codefendants. Although that codefendant’s fingerprints
were found in a car associated with the murder, it was undisputed that the codefendant
had numerous opportunities to place his fingerprints on the vehicle under circumstances
that were “entirely unconnected to the crime.” (Id. at p. 399.)
Unlike in Robinson, where the codefendant had a preexisting relationship with the
owner of the car, here it would have been entirely speculative for the jury to find that
defendant had touched the Honda some time prior to the incident. The evidence
established no preexisting relationship between defendant and the Honda owner, Azucena
3
Defendant incorrectly asserts that only one of his fingerprints was found on the
car. A Department of Justice latent print analyst testified that prints from the Honda
matched defendant’s left ring finger and his left middle finger. Defendant also
incorrectly asserts that the fingerprint was “contaminated.” A criminalist testified that he
did “a second lift” of the same fingerprint because “a lot of contaminates,” meaning air
bubbles or dust or dirt, came up with the first lift. No testimony indicated that the second
lift was contaminated in any way.
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Cerna, or any of her family members who drove her car. Moreover, defendant’s
fingerprints were found in the specific area of the Honda that John Doe Two described as
having been touched by the shooter. This evidence “ ‘tends to connect the defendant with
the crime in such a way as to satisfy the jury that the accomplice is telling the truth.’ ”
(Lewis, supra, 26 Cal.4th at p. 370.)
The out-of-state cases defendant discusses are also distinguishable. In the first
case, State v. Foster (2008) 221 Ore.App. 108, the defendant’s fingerprint on a digital
scale in his own apartment failed to sufficiently connect him with drugs found in a car
driven by the other occupant of the apartment. (Id. at pp. 113-114.) The second case,
Borum v. United States (1967) 380 F.2d 595, held that it would be speculative to find that
the defendant committed a “housebreaking” based solely on his fingerprints having been
found on glass jars in the residence. (Id. at p. 595; cf. United States v. Scarpellino (1970)
431 F.2d 475, 478 [questioning validity of Borum].) And in the third case, State v. Payne
(1982) 186 Conn. 179, the defendant’s fingerprint was found on his brother’s car and thus
not “under such circumstances that they could only have been impressed at the time the
crime was perpetrated.” (Id. at p. 182.)
Here, as previously stated, there was evidence that defendant’s fingerprints were
found on the Honda in the location that John Doe Two described as having been touched
by the shooter. There was nothing to suggest that defendant could have placed his hands
on the Honda at a previous time. Moreover, there was evidence that defendant was a
Norteño gang member and evidence that the crime was gang related. John Doe Two
testified that the shooter asked if the cousins “bang[ed].” John Doe One similarly
testified that a person on the passenger side of the Honda asked the cousins if they
“bang[ed].” The gang expert testified that “What do you bang” is a common question
asked by a gang member who perceives someone else to be a gang member, “prior to
assaulting them or causing harm.”
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With respect to the gang evidence, defendant contends there is less independent
corroboration here than in People v. Pedroza (2014) 231 Cal.App.4th 635. In that case,
the “nonaccomplice testimony . . . established only that [the] defendant had a general
connection to the victim and other perpetrators—shared gang membership—and he was
seen associating with the other perpetrators after the murder, away from the crime scene.”
(Id. at p. 651.) There was “no evidence about [the] defendant’s acts or conduct” at the
time of the crime. (Ibid.) In the instant case, by contrast, there was evidence connecting
defendant to the actual shooting: the testimony of John Doe Two that the shooter
touched the passenger side of the Honda above the door, and the evidence that
defendant’s fingerprints were found on the Honda’s passenger side roof line.
In sum, even assuming the trial court should have instructed the jury that John Doe
Three was an accomplice as a matter of law, there was “sufficient corroborating evidence
in the record,” and thus any error was harmless. (See Lewis, supra, 26 Cal.4th at p. 370.)
B. Sealed Records Review
Defendant requests this court independently review documents and testimony that
the trial court reviewed at an in camera hearing and “determine whether the trial court
ruled correctly” when it ordered the prosecutor to provide the defense with a redacted
summary of statements made by a witness.
1. Trial Court Proceedings
Before defendant’s trial began, the People filed a request for an in camera hearing,
citing section 1054.7.4 The People explained that they had “been made aware of
statements relating to this case” and that “[d]ue to the nature of the evidence,” the People
would “present the Court with the particulars” at an in camera hearing. On April 17,
2019, the trial court held a hearing at which it set a date for the in camera hearing.
4
Section 1054.7 provides in pertinent part: “Upon the request of any party, the
court may permit a showing of good cause for the denial or regulation of disclosures, or
any portion of that showing, to be made in camera.”
15
The trial court held an in camera hearing on April 24, 2019.5 Only the prosecutor
was present. The trial court represented that it had previously met with both counsel in
chambers “about the nature of this issue” and had “discussed it at length.” The trial court
stated its intention to meet with both counsel again before ruling.
The prosecutor explained that she would be presenting evidence of potentially
exculpatory statements made by a non-testifying witness. The trial court told the
prosecutor she should write up “a brief summary of what [the] witness would say if
called to testify and provide that to the Defense under some kind of protective order.”
The in camera hearing then proceeded, with testimony from one witness. The trial
court did not review any documents during the hearing. At the end of the hearing, the
trial court against stated it would “rule on this at the pretrial” and that before making any
ruling it would hold a further discussion about the matter with defendant’s trial counsel
present.
On May 3, 2019, an unreported in chambers discussion occurred with both counsel
present. Following the in chambers discussion, trial court ordered the People to provide
defendant with “a redacted summary of the statement of the witness that we had been
talking about.” Defendant did not object at that time, nor did he later object to the
redacted summary that was apparently provided.
2. Proceedings in this Court
When the original record on appeal was filed, it did not include a transcript or any
other records from the in camera hearing. Defendant requested this court order the
appellate record augmented with a sealed clerk’s transcript of any records or information
5
The original record on appeal did not reflect that the in camera hearing was set
for or heard on April 24, 2019. Thus, in their original briefs, the parties assumed that the
in camera hearing was held on May 3, 2019, which was the date of the trial court’s
subsequent ruling.
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reviewed and considered by the trial court during the in camera hearing, and a sealed
reporter’s transcript of the in camera hearing.
This court ordered the trial court to prepare the requested augmentation and to file
it under seal. The trial court clerk responded by certifying that a complete and accurate
copy of the entire case file had previously been transmitted. The trial court also filed an
augmented reporter’s transcript that reflected the order made by the trial court, in open
court, following the May 3, 2019 chambers discussion. No transcript of an in camera
hearing was provided, and no documents were provided under seal.
This court then ordered the trial court to prepare a settled statement regarding the
in camera hearing. In response, the trial court provided a sealed reporter’s transcript of
the April 24, 2019 in camera hearing and a minute order from a hearing held on
March 19, 2021. The minute order from the March 19, 2021 hearing states: “All parties
agree that there were no documents under seal as to that matter and the Court did not
review any documents during the in-camera hearing held on 4-24-2019 or during the
Ruling on the in-camera hearing held on 5-3-2019.”
After receiving the sealed reporter’s transcript and the March 19, 2021 minute
order, this court requested the parties submit supplemental briefing on the question of
whether defendant forfeited any issue regarding the in camera hearing and redacted
witness summary.
3. This Court’s Review
As defendant points out, “the due process clause requires the ‘government’ to give
the accused all ‘material’ exculpatory evidence ‘in its possession,’ even where the
evidence is otherwise subject to a state privacy privilege, at least where no clear state
policy of ‘absolute’ confidentiality exists. [Citation.] When the state seeks to protect
such privileged items from disclosure, the court must examine them in camera to
determine whether they are ‘material’ to guilt or innocence.” (People v. Webb (1993) 6
Cal.4th 494, 518 (Webb).) On appeal, an appellate court may be requested to
17
“independently examin[e]” the material the trial court considered in camera to determine
whether the trial court’s ruling was correct. (People v. Mooc (2001) 26 Cal.4th 1216,
1232.)
In the instant case, the trial court held an in camera hearing during which it heard
testimony from a witness but did not review any documents. The trial court made no
ruling immediately following the in camera hearing. The trial court held an unreported in
chambers discussion with both parties and then put its ruling on the record in open court,
ordering the prosecution to provide the defense with “a redacted summary of the
statement of the witness that we had been talking about.” Defendant did not object at that
time, nor did he object after receiving the redacted witness summary.
“Ordinarily, an appellate court will not consider a claim of error if an objection
could have been, but was not, made in the lower court. [Citation.] The reason for this
rule is that ‘[i]t is both unfair and inefficient to permit a claim of error on appeal that, if
timely brought to the attention of the trial court, could have been easily corrected or
avoided.’ ” (People v. French (2008) 43 Cal.4th 36, 46.)
Defendant’s failure to object after the in chambers discussion strongly suggests
that defendant consented to the trial court’s order that the prosecution provide a redacted
witness summary. Likewise, defendant’s failure to object after receiving the redacted
witness summary strongly suggests that defendant found the redacted witness summary
to be adequate. By failing to object, defendant forfeited any challenge to the trial court’s
order and to the redacted witness summary. (See People v. Tully (2012) 54 Cal.4th 952,
1056 [defendant forfeited challenge to trial court’s response to jury request because he
failed to object when the trial court stated that, during an unreported bench conference,
both counsel had “ ‘agreed’ ” to the response].)
Defendant’s failure to object also necessarily constrains this court’s ability to
review the trial court’s ruling. Because defendant failed to object at the May 3, 2019
hearing, the record does not contain any information about what information the trial
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court ordered redacted from the witness summary. Because defendant failed to raise any
objection to the redacted witness summary provided by the prosecution, the summary is
not part of the record on appeal.
Having conducted a “careful review” of the limited materials that are part of the
appellate record (Webb, supra, 6 Cal.4th at p. 518), we find no error in the trial court’s
determination that some redaction of the witness summary was necessary.
C. Prior Prison Term Enhancement
At defendant’s sentencing hearing, the trial court indicated that it was going to
“impose the one year” for the section 667.5, subdivision (b) prior prison term
enhancement, “but stay or strike that.” The minute order reflects that the enhancement
was stayed pursuant to section 654. However, the enhancement is not reflected on the
abstract of judgment.
Defendant contends, and the Attorney General agrees, that the prior prison term
enhancement should be stricken because defendant is entitled to the retroactive benefit of
Senate Bill No. 136 (Stats. 2019, ch. 590, § 1), which amended section 667.5,
subdivision (b) “such that a one-year enhancement for a prior prison term shall be
imposed only if the prior term was for a sexually violent offense.” (People v. Winn
(2020) 44 Cal.App.5th 859, 872.)
As noted, the record is somewhat unclear as to whether the prior prison term
enhancement was imposed but stayed, or whether it was stricken. For clarity of the
record, we will order the trial court to strike the enhancement.
III. DISPOSITION
The judgment is reversed. The trial court is ordered to strike the Penal Code
section 667.5 allegation, prepare a new minute order, and reinstate the judgment.
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Cogliati, J.*
WE CONCUR:
Elia, Acting P.J.
Bamattre-Manoukian, J.
People v. Gutierrez
H047384
*
Judge of the Santa Cruz County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.