People v. Young CA5 ( 2021 )

Filed 9/23/21 P. v. Young CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079921
Plaintiff and Respondent,
(Super. Ct. No. DF012462A)
v.
TORAINO LEON YOUNG, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John D.
Oglesby, Judge.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A.
Martinez, and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Detjen, J. and DeSantos, J.
Defendant Toraino Leon Young stands convicted of assault with a deadly weapon
by an inmate. He contends on appeal that his trial counsel was ineffective for failing to
file a third Pitchess1 motion, seeking disclosure of confidential peace officer records.
The People disagree. We affirm.
PROCEDURAL SUMMARY
On August 24, 2016, the Kern County District Attorney filed an information
charging defendant with assault with a deadly weapon by an inmate (Pen. Code, § 4501,
subd. (a);2 count 1). The information further alleged defendant had suffered two prior
felony “strike” convictions within the meaning of the “Three Strikes” law (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(e)), had suffered a prior serious felony conviction
(§ 667, subd. (a)), and had served a prior prison term (§ 667.5, subd. (b)).
On August 24, 2017, defendant filed a first Pitchess motion, seeking disclosure of
confidential peace officer records for two officers and Brady3 material related to
11 officers. On August 31, 2017, the Department of Corrections and Rehabilitation
(CDCR), as custodian of records for the documents, filed an opposition to that motion.
On September 14, 2017, the trial court denied the motion.
On May 22, 2018, defendant filed a second Pitchess motion, seeking disclosure of
confidential peace officer records for six officers and any Brady material related to
11 officers. Again, the CDCR opposed the motion. On July 11, 2018, the trial court
denied defendant’s second motion.
On October 11, 2018, after a bench trial, the trial court found defendant guilty on
count 1 and found all special allegations true. On August 7, 2019, the trial court
1 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
2 All further statutory references are to the Penal Code unless otherwise stated.
3 Brady v. Maryland (1963) 373 U.S. 83 (Brady).
2.
sentenced defendant to 25 years to life in state prison as a third-strike offender. The trial
court struck the five-year serious felony conviction enhancement.
On September 9, 2019, defendant filed a notice of appeal.
FACTUAL SUMMARY
On October 20, 2015, defendant was an inmate at Kern Valley State Prison
(KVSP). At about 1:30 p.m., defendant and other inmates were on afternoon yard release
in the facility “A” yard. Defendant approached fellow inmate Kio Simmons from the
rear and struck Simmons on the right side of his head using his right hand. No other
inmate was within five feet of the two. Simmons dropped to his knees and defendant
struck him an additional two or three times. Simmons did not fight back. He attempted
to protect his head with his hands.
KVSP Correctional Officers Lorenzo Gurrola and Stephanie Vera were
supervising inmates on the facility “A” yard during the attack and KVSP Correctional
Officer Ruben Robles was providing observation of facility “A” from an overlooking
patio that stood approximately 25 feet above the ground. Gurrola and Vera stood about
50 to 60 yards away from defendant and Simmons; Robles was approximately 40 or
50 yards away from defendant and Simmons. When Gurrola saw defendant strike
Simmons he radioed the other officers and gave all inmates on the yard an order to
“prone out.” Vera and Robles also saw defendant strike Simmons. Defendant stopped
striking Simmons, walked about 10 feet away from Simmons and toward Gurrola, and
“assumed the prone position.” Gurrola, Vera, and Robles all testified that they did not
see defendant throw any weapon or make any throwing gesture.
As Gurrola and Vera approached Simmons, Simmons attempted to rise to his feet,
but he appeared unsteady. Gurrola placed Simmons in handcuffs and conducted a
clothed body search for contraband. A plastic inmate-manufactured weapon was
discovered near where the fight took place.
3.
KVSP Correctional Officer Ramiro Loza worked for the investigative services unit
on October 20, 2015. At about 1:30 p.m., he was called to investigate an incident in the
facility “A” yard involving a weapon. When he arrived, the inmates—other than
Simmons, who was already removed from the yard—were laying facedown. He
observed and took custody of a jagged inmate-manufactured weapon made from melted
plastic that was sharpened to a point. He further observed that defendant had suspected
blood on his shorts and on his right hand. He also observed a laceration on the knuckle
of defendant’s right thumb. Loza did not discover any blood on any other inmate.
Dr. Jeff Sao was a medical doctor at KVSP on October 20, 2015. He treated
Simmons and discovered that he had suffered a laceration on the right side of the
forehead; an abrasion above the right eye on the forehead; an almost three-quarter-inch
laceration on the right side of the face, lateral to the right eye; a crater-like abrasion on
the chin; and an abrasion and puncture at the upper right neckline near the jaw. Simmons
was struck repeatedly on the right side. The injuries to the chin and neckline were
consistent with the injury having been caused by the plastic inmate-manufactured
weapon.
Dr. Sao treated defendant on October 27, 2015. On that date, defendant
complained that his right hand was broken. Defendant claimed that he injured it in a fall
a week prior. Dr. Sao noted swelling on the base of the right thumb and a scab that was
at least three to four days old near the knuckle on the right thumb. Because the scab was
on the top side of the hand, Dr. Sao believed the injury was more consistent with fighting
than with falling. The injury could also have been caused by using the plastic
inmate-manufactured weapon in a punching motion.
DISCUSSION
Defendant contends that his trial counsel was ineffective for failing to file a
third Pitchess motion seeking the same information he sought in the second Pitchess
motion—personnel records of KVSP Officers Loza, Robles, Gurrola and Vera,
4.
Lieutenant David Balkind, and Sergeant Marvin Ventura as well as Brady material
related to 11 officers, including some of the aforementioned officers. We disagree.
A. Pitchess Framework
A Pitchess motion allows a criminal defendant to “compel the discovery” of
information in police officer personnel files. (People v. Superior Court (Johnson) (2015)
61 Cal.4th 696, 710.) “Traditionally, Pitchess motions seek information about past
complaints by third parties of excessive force, violence, dishonesty, or the filing of false
police reports contained in the officer’s personnel file.” (Rezek v. Superior Court (2012)
206 Cal.App.4th 633, 641 (Rezek).)
Pitchess motions are governed by specific statutory procedures. (Evid. Code,
§§ 1043–1045; §§ 832.5, 832.7, 832.8.) “The [written] motion must describe the type of
records or information sought and include an affidavit showing good cause for the
discovery, which explains the materiality of the information to the subject of the pending
litigation and states on reasonable belief that the governmental agency has the records or
information.” (People v. Superior Court (Johnson), supra, 61 Cal.4th at p. 710.)
“ ‘A showing of “good cause” exists if the defendant demonstrates
both (1) a “specific factual scenario” that establishes a “plausible factual
foundation” for the allegations of officer misconduct [citations], and
(2) that the misconduct would (if credited) be material to the defense
[citation] .… Accordingly, defense counsel’s supporting declaration must
propose a defense and articulate how the requested discovery may be
admissible as direct or impeachment evidence in support of the proposed
defense, or how the requested discovery may lead to such evidence.
[Citation.] Thus, a defendant meets the materiality element by showing
(1) a logical connection between the charges and the proposed defense;
(2) the requested discovery is factually specific and tailored to support the
claim of officer misconduct; (3) the requested discovery supports the
proposed defense or is likely to lead to information that will do so; and
(4) the requested discovery is potentially admissible at trial. [Citation.]’ ”
(Rezek, supra, 206 Cal.App.4th at pp. 639–640.)
5.
B. Additional Background
Defendant’s first Pitchess motion contained a declaration by counsel alleging that
Loza and Lieutenant David Balkind “have been the subjects of ongoing investigations
involving unspecified violations[.]” The motion contained the contention that “the
reports of … Loza and … Balkind are incorrect or false.” However, no evidence was
submitted in support of that contention and no explanation was given regarding the way
in which the reports were incorrect or false. At the hearing on the motion, defendant’s
counsel contended that “the reports of the officers in this case were plainly wrong. They
provided supplemental declarations that contradicted the first findings during the initial
investigation ….” The trial court denied the motion without prejudice, noting that the
motion was unsupported by evidence and that defendant’s counsel had not submitted any
exhibit suggesting that contradictory evidence was contained in the officers’ reports.
Defendant’s second Pitchess motion repeated the allegation that “the reports of …
Loza and … Balkind are incorrect or false.” The motion further alleged that Vera,
Ventura, Gurrola, and Robles “provided the prosecution with additional statements which
were in marked contrast to the ones provided in [their] original report[s].” The motion
also alleged that Robles had “a level of familiarity with the … victim that was unknown
to the defense[,]” had been charged with and acquitted of “[a]ssault by a public officer
and making a false report[,]” and had been convicted of “driving under the influence …
and [was] currently on probation for those charges [sic].” Defendant’s counsel’s
declaration in support of the second motion alleged that “Lozano [sic] and … Balkind
ha[d] been the subjects of ongoing investigations involving unspecified violations[,]”
“Robles, Vera, Loza, Ventura[,] and Gurola [sic] have provided false reports in this
6.
case[,]” and Robles was “on probation and was charged with assault and making a false
report[.]” The trial court denied the second motion.4
On October 9, 2018, the Pitchess issue was revisited. Defendant’s counsel
explained that his client had discovered that administrative proceedings had been initiated
against Balkind and perhaps other officers. Defendant’s counsel further commented that
information regarding Balkind had been released in response to a Pitchess proceeding in
a different case. Defendant’s counsel then commented that he “received information
from … Vera, who indicate[d] that the report she had originally filed … was
contradicted” and information suggesting that Robles was involved in an incident of
excessive force in 2007. He summarized that he filed the Pitchess motions because he
did not know whether the officers had been involved in administrative proceedings where
allegations of misconduct were substantiated. He was “guessing that some of them
[were] substantiated.” He knew that the administrative proceedings against some officers
existed and “wanted to know the nature of them” because it impacted the credibility of
the witnesses. However, he did not allege “that there was any issue[] of dishonesty.” At
the end of the proceeding, the trial court suggested defendant’s counsel—with the
assistance of court staff—seek the trial court records of any case involving misconduct
against Balkind or Robles, that the People review and redact the records, and that the
People provide discovery to defendant.
On October 10, 2018, the parties disclosed that they had discovered a
one-page probable cause declaration finding that Robles “assaulted a person who could
not defend himself[] and then he lied” about the encounter in a report. The trial court
afforded defendant an opportunity to seek a continuance to seek further discovery
regarding the incident of excessive force. Defendant’s counsel responded that his “client
4 The record does not contain a transcript from the hearing on defendant’s
second Pitchess motion.
7.
believes that it is not in his best interest … to continue the matter, and he wishes to
proceed to trial.” Defendant did not contradict his counsel’s statement.
C. Analysis
To establish ineffective assistance of counsel (IAC) defendant must show
(1) counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms, and (2) counsel’s deficient performance was prejudicial.
(Strickland v. Washington (1984) 466 U.S. 668, 687–688; People v. Ledesma (1987)
43 Cal.3d 171, 216–217.) “ ‘Unless a defendant establishes the contrary, we shall
presume that “counsel’s performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be explained as a matter of
sound trial strategy.” [Citation.] If the record “sheds no light on why counsel acted or
failed to act in the manner challenged,” an appellate claim of [IAC] must be rejected
“unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation.” ’ ” (People v. Lopez (2008) 42 Cal.4th 960,
966.) To establish prejudice, defendant must make a showing “sufficient to undermine
confidence in the outcome” that but for counsel’s errors there is a reasonable probability
that the result of the proceeding would have been different. (Strickland, at p. 694; see
Ledesma, at pp. 217–218.)
Here, the record undercuts defendant’s contention that there is no satisfactory
explanation for his trial counsel’s failure to file a third Pitchess motion. Defendant’s trial
counsel stated on the record his reason for not filing a third Pitchess motion—his “client
ha[d] been waiting almost exactly three years to vindicate himself in this case. [¶ ] …
[¶] [His] client believe[d] that it [was] not in his best interest … to continue the matter,
and he wishe[d] to proceed to trial.” Even assuming a Pitchess motion may have been
meritorious, counsel’s stated reason for refusing to file a third Pitchess motion was a
valid tactical decision.
8.
Next, defendant has not established that he suffered any prejudice as a result of his
trial counsel’s failure to file a third Pitchess motion. The record does not support any
statement of a “ ‘specific factual scenario’ ” which could have established a “ ‘plausible
factual foundation’ ” (Rezek, supra, 206 Cal.App.4th at p. 639) for the nonspecific
allegations that Vera, Gurrola, and Ventura provided false information or made false
reports.5 A defendant disputing the facts set out in an officer’s report is not sufficient to
demonstrate good cause for a Pitchess motion. (People v. Sanderson (2010)
181 Cal.App.4th 1334, 1340–1341; People v. Thompson (2006) 141 Cal.App.4th 1312,
1317.) Here, the record does not support any foundation for the allegation that those
officers submitted false reports. Instead, defendant’s counsel’s prior declarations and
statements on the record merely alleged that those officers’ reports were false. The
record does not support an alternate version of the facts that supported his defense and
therefore does not support a showing of good cause.
Even assuming defendant had prevailed on the motion and obtained evidence of
excessive force, violence, dishonesty, or the filing of false reports from the personnel
files of Loza, Balkind, and Robles, there is no reasonable probability that the result would
have been different. Balkind did not testify and did not appear to have any role in the
investigation of this case; Loza did not testify to any material information not provided
by the other officers; and the court was aware of the allegation that Robles harmed an
inmate and then later filed a false report to conceal the incident. Vera and Gurrola both
witnessed defendant’s attack on Simmons. Vera saw and took custody of the
inmate-manufactured weapon before Loza arrived. Dr. Sao described Simmons’ neck
and chin injuries as including a “stab wound” and an “irregular shaped puncture” that
5 Defendant previously alleged that Loza submitted a report falsely describing the
injuries to defendant and Robles had previously submitted a false report to conceal
unwarranted or excessive use of force. No similar allegations were made regarding Vera,
Gurrola, or Ventura.
9.
were consistent with the weapon found near the fight. Dr. Sao further described the
inflammation and scabbing of defendant’s right thumb as being more consistent with
fighting than with defendant’s explanation that he fell.
The trial court’s description of the basis for its verdict is consistent with the
conclusion that Pitchess-type evidence would not have impacted the verdict. The trial
court described “that the evidence in this case clearly establishe[d] … defendant’s guilt.
We have three people[—Robles, Gurrola, and Vera—]who witnessed an assault by …
defendant on another inmate. [¶] … [W]e have the testimony of the medical doctor,
who … testified that a weapon was used to … inflict[] [at least] one of the injuries. A
weapon was found in the vicinity of where the assault occurred. And the defendant was
noted to have injuries … on his right hand, and that would be, in this Court’s opinion,
consistent with the assault.” In sum, there is no reasonable likelihood that the trial
court’s verdict would have been different even if Pitchess-type evidence had been
discovered regarding Robles, Loza, and Balkind.
DISPOSITION
The judgment is affirmed.
10.