People v. Torrico CA2/8 ( 2021 )

Filed 10/8/21 People v. Torrico CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE OF THE STATE OF B305870
CALIFORNIA,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. KA119913)
v.
JOAQUIN TORRICO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Juan C. Dominguez, Judge. Conditionally
reversed and remanded with directions.
Elizabeth H. Eng, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Zee Rodriguez and Paul S. Thies, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Appellant Joaquin Torrico was convicted of several offenses
for allegedly possessing and shooting a gun on the night of
January 28, 2018. His defense at trial was that he shot off
fireworks, not a gun. He appeals the trial court’s partial denial of
his Pitchess motion and contends the trial court erred in failing to
stay the sentence on his conviction of possession of a firearm by a
felon. We conditionally reverse as to the Pitchess ruling and
otherwise affirm.
A. The People’s Evidence at Trial
Appellant had three children with Norma Martinez, from
whom he is separated. The three children are Vanessa, age 16,
and Daniel, age 9, who live with Norma, and David, age 18, who
lives with appellant. Daniel spent the weekend of January 27,
2018 at appellant’s house. On Sunday, January 28, 2018, Norma
asked another daughter, Maribel Perez, to pick up Daniel after
Maribel left work at 10:00 p.m. so Daniel would be home and
ready for school the next day.
After work, Maribel picked up her half-sister Vanessa and
headed over to appellant’s house. She got a flat tire so she called
her friend Kimberli for help. Kimberli came and drove the three
of them to appellant’s home, arriving about 11:00 p.m. On the
way Vanessa texted her brother David who told her Daniel was
sick and not going home. The three girls continued on to
appellant’s house anyway.
They arrived and parked across the street from appellant’s
house. Vanessa texted her father and asked him to send Daniel
out to the car. In the meantime appellant had texted Norma and
told her to tell Maribel and Kimberli to leave or he would start
shooting. Norma thought he was joking.
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Maribel, Vanessa, and Kimberli each gave three different
versions of what happened next. Maribel testified they were
waiting about 10-15 minutes. Norma contacted them and told
them to leave. As they were preparing to leave, appellant came
out of his house with his brother Hugo. Maribel saw appellant
was carrying a black gun. Maribel said appellant stood in his
driveway, pointed the gun at them, and told them to leave.
Maribel told Kimberli to drive away and as they did so, they
heard a gunshot. Maribel did not see who shot the gun. They
drove up the street to call 911, and then went to a nearby
McDonald’s to await the police.
Kimberli, the driver, testified that while they were waiting
outside appellant’s house, Norma messaged them to leave. They
did not immediately leave. Instead, they waited because Vanessa
still believed her father was going to send out Daniel. They
waited 30-40 minutes when appellant came out with a black gun
after getting a text from Vanessa’s phone asking him to send
Daniel to them. (The police report states Kimberli said she saw
him with a brown and grey semi-automatic firearm. At the
preliminary hearing Kimberli said it was a revolver.) Kimberli
testified appellant came out of the house, holding a gun and
screaming, “You need to leave.” She saw appellant put his hand
over the top of the gun and slide it back. After they heard the
gunshot, they drove away.
Vanessa gave the third version of events. Vanessa testified
she texted her father to send Daniel out and despite Norma’s
message, she wanted to wait for him to do so. They waited
outside the house and she testified no one ever came out of the
house. She said Kimberli pulled the car into the driveway and
started honking the horn. They heard a firework go off in the
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backyard, but not a gunshot. They decided to call the police
because Daniel was not coming out of the house. They went to
McDonald’s to await the police. Vanessa testified she lied when
she told the 911 operator that appellant had a gray and brown
“little pistol.” Vanessa testified appellant has never owned a gun.
The 911 operator was told appellant came out of his house
with a gun.
Deputy Brian Gorski spoke with Vanessa, Maribel, and
Kimberli at the McDonald’s and noted their descriptions of the
event were almost identical. He detained appellant in the back of
his car for 30 minutes before he tested appellant’s hands for
gunshot residue. The sample from appellant’s hands was
consistent with residue.
Detective David Lopez interviewed appellant at the
station. Appellant said he had set off a firework, not used a gun.
Lopez obtained a warrant to search for any weapons and any
shell casings. He searched appellant’s home and found a box of
ammunition for a revolver or a semi-automatic weapon. No shell
casings, fireworks, or firearms were discovered during the search.
B. The Defense Case
At 1:00 a.m. appellant and his brother arrived home from
work, intending to go back out and buy food for the family to eat.
When they arrived, David and appellant’s girlfriend Magdalena
were at the front door because they were planning to set off a
firework. While the four of them were talking about what they
wanted to eat, they noticed a car no one recognized parked across
the street.
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David asked his father to set off the firework he and
Magdalena had brought out. When appellant bent down to set off
the firework, the car pulled in front of the house, the occupants
screamed at them “Fucking little bitch” and the car pulled away.
Because the car left, appellant did nothing in response.
Appellant set off the firework, the group decided what it wanted
to eat, and then appellant and his brother went to a friend’s
house around the corner to see if the friend also wanted some
food.
C. Conviction and Sentence
The jury convicted appellant of three counts of assault with
a semiautomatic firearm; making a criminal threat; attempted
criminal threats; discharging a gun with gross negligence;
possession of a firearm by a felon; unlawful possession of
ammunition. The jury found true the three gun use
enhancements as to the assault counts. Appellant admitted a
prior conviction as both a strike and a serious felony. The court
ordered appellant to serve a total of 19 years eight months in
state prison, consisting of four years for the assault, doubled to
eight for the prior strike conviction; two years each for the other
two assault convictions, five years for the prior serious felony
conviction enhancement; two consecutive years for possession of a
firearm by a felon; and eight months for the criminal threat. The
sentences on the remaining counts were either imposed
concurrently or stayed.
Appellant filed a timely notice of appeal.
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D. The Trial Court Erred in Limiting the Pitchess
Discovery to Instances of Fabrication of Police
Reports Only.
Appellant filed a discovery motion pursuant to Pitchess v.
Superior Court (1974) 11 Cal.3d 531 (Pitchess), for all “complaints
from any and all sources relating to acts of, fabrication of
charges, fabrication of evidence, fabrication of reasonable
suspicion and/or probable cause, perjury, dishonesty, writing
false police reports, and any other evidence of misconduct
amounting to moral turpitude . . . against Detective D. Lopez.” In
the declaration in support of the motion, defense counsel declared
“Lopez appears to have fabricated portions of his arrest report to
justify the arrest and prosecution of the defendant as well as to
undermine the defendant’s statements regarding use of [a]
firework that would lend in a defense against the [assault]
charges and any evidence of GSR [gunshot residue].” More
specifically, counsel declared both David and Magdalena
maintained Detective Lopez never interviewed them and had he
done so, they each would have confirmed that appellant had set
off a firework. In contrast, Lopez’s report stated that both David
and Magdalena had told him they did not see appellant set off a
firework.
The trial court partially granted the motion and ordered
discovery of the personnel files of Detective Lopez as to
fabrication of police reports only. Appellant contends that the
trial court should have ordered broader discovery of any and all
instances of dishonesty. We agree.
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1. Standard of Review
We review the trial court’s order under the abuse of
discretion standard. (People v. Samayoa (1997) 15 Cal.4th
795, 827.) Abuse of discretion occurs when the court’s ruling falls
outside the bounds of reason. (People v. Waidla (2000) 22 Cal.4th
690, 714.)
2. Applicable Law
On a showing of good cause, a criminal defendant is
entitled to discovery of relevant documents or information in the
personnel records of a police officer accused of misconduct against
the defendant. (Evid. Code, § 1043, subd. (b).) Good cause for
discovery exists when the defendant shows both materiality to
the subject matter of the pending litigation and a reasonable
belief that the agency has the type of information sought. (City of
Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84.)
The information sought must be described with some
specificity to ensure that the defendant’s request is limited to
instances of officer misconduct related to the misconduct asserted
by the defendant. (Pitchess, supra, 11 Cal.3d at p. 537.) This
specificity requirement excludes requests for officer information
that are irrelevant to the pending charges; it also enables the
trial court to identify what types of officer misconduct
information, among those requested, will support the defense or
defenses proposed to the pending charges. (Warrick v. Superior
Court (2005) 35 Cal.4th 1011, 1021 (Warrick).) For example, in
People v. Hustead (1999) 74 Cal.App.4th 410, 416, the court found
that prior instances of excessive force were irrelevant to the
charge of evasion of arrest in an automobile.
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Here the trial court found good cause for discovery of the
officer’s records, but apparently found the request overbroad.
The trial court limited discovery to evidence of fabrication of
police reports only, instead of a broader category of evidence of
dishonesty, as requested by defendant. We see no basis to limit
discovery to fabrication of police reports only. In that regard, we
rely on Warrick where defendant was accused of dropping rocks
of cocaine while he fled the police. Defendant contended that he
dropped no rocks while he fled and that police officers fabricated
their version of events. In discovery, defendant asked for
disclosure of any previous citizen complaints against the
arresting officers for making false arrests, falsifying police
reports or planting evidence, and a long list of other types of
misconduct. (Warrick, supra, 35 Cal.4th at p. 1017.) As the court
put it, “Seekng to show that the officers had falsely arrested
defendant and fabricated the facts in the arrest report, the
defense sought to discover previous complaints against the
officers for dishonesty.” (Ibid.) The Court of Appeal had
concluded that defendant was entitled only to disclosure of prior
complaints that the officers had made false statements in police
reports and it denied disclosure of documents that related to false
overtime claims. (Id. at p. 2018.)
In ordering further disclosure, our Supreme Court stated
that defendant need only show that the discovery sought “may
lead to relevant evidence or may itself be admissible direct or
impeachment evidence.” (Warrick, supra, 35 Cal.4th at p. 1024.)
Accordingly, the Court reversed the limited discovery order and
held defendant was entitled to discovery of “officers’ personnel
records relating to making false arrests, planting evidence,
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fabricating police reports or probable cause, and committing
perjury.” (Id. at p. 1027, italics added.)
The Warwick Court permitted discovery of possible false
overtime records, implicitly acknowledging that dishonesty may
occur in different contexts, but, whatever the context, evidence of
dishonesty may lead to admissible impeachment evidence. Here
the trial court similarly limited discovery to fabrication in the
preparation of police reports. Appellant’s Pitchess request was
broader, asking for documents of any other evidence of
dishonesty. Given that appellant’s defense was premised on his
argument that Detective Lopez had lied in recounting what the
witnesses had told him, his credibility was a central issue at trial.
Just like in Warwick, any evidence of perjury or other dishonesty
would have been critical to appellant’s defense and should have
been disclosed.
We have reviewed the transcript of the in camera hearing
and we are unable to determine whether the custodian of records
produced Detective Lopez’s complete file or just those records
that fell into the category of “fabrication of police reports.” Our
review of the transcript discloses the court reviewed complaints
unrelated to dishonesty and there was no error in concluding
those complaints were not discoverable. However, because it
appears the trial court ruled that only complaints relating to
fabrication of police reports were relevant, a limited remand is
required to determine whether the officer’s personnel file also
included incidents that fall into the general category of
“dishonesty.” If there are no additional complaints in Detective
Lopez’s file during the relevant period other than those the court
already reviewed and considered as reported in the transcript of
the Pitchess hearing that is before us, then the court need not
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repeat its findings as to the records it previously reviewed but
should make it clear on the record there are no complaints in the
general category of dishonesty.
Accordingly, we order a limited remand pursuant to the
procedures outlined in People v. Hustead, supra, 74 Cal.App.4th
at p. 423. We reverse the judgment conditionally and remand to
the trial court to conduct another in camera hearing on the
discovery motion as to all records of incidents of perjury or
dishonesty. If there is no discoverable information in the file,
then the trial court is ordered to reinstate the original judgment
and sentence, and the judgment is ordered affirmed. If, however,
there is relevant discoverable information in the officer’s file,
appellant should be given an opportunity to determine if the
information would have led to any relevant, admissible evidence
that he could have presented at trial. If appellant is able to
demonstrate that he was prejudiced by the denial of the
discovery, the trial court should order a new trial. If appellant is
unable to show prejudice, then the conviction is ordered
reinstated and the judgment is ordered affirmed.
Finally, appellant has asked us to review the record of the
Pitchess in camera review to determine if anything in the files
that were produced should have been disclosed. We have
conducted that review and conclude all discoverable evidence was
properly disclosed.
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E. The Trial Court Properly Declined to Stay the
Sentence for Possession of a Firearm by a Felon.
Appellant contends that the two-year consecutive sentence
imposed for his conviction of possession of a firearm by a felon
should have been stayed pursuant to Penal Code1 section 654.
He argues there was no independent evidence that he possessed
the gun prior to the incident in which he was alleged to have used
it. We disagree.
Section 654, subdivision (a) provides: “An act or omission
that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the
act or omission be punished under more than one provision. An
acquittal or conviction and sentence under any one bars a
prosecution for the same act or omission under any other.”
Where, as here, we are faced with a combination of possession of
a firearm by a felon and another underlying offense, we decide
whether possession of the firearm constitutes a divisible
transaction from the offense in which the defendant employs the
weapon. Thus, where the evidence shows a possession distinctly
antecedent and separate from the primary offense, punishment
on both crimes has been approved. On the other hand, where the
evidence shows a possession only in conjunction with the primary
offense, then punishment for the illegal possession of the firearm
has been held to be improper where it is the lesser offense. In
which case, the sentence must be stayed under section 654.
(People v. Bradford (1976) 17 Cal.3d 8, 22; People v. Venegas
(1970) 10 Cal.App.3d 814, 821 [sentence stayed where possession
1 All further section references are to the Penal Code.
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was simultaneous physically and incident to only one objective,
namely to shoot the victim].)
Section 654 does not apply where possession of the weapon
preceded the assault. (People v. Wynn (2010) 184 Cal.App.4th
1210, 1217.) Indeed, where possession of the weapon would have
been a completed offense even if no use had been made of it, no
stay is required. (People v. Hudgins (1967) 252 Cal.App.2d 174,
184–185; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1411.)
Here the evidence established that when the girls arrived
to pick up Daniel, appellant called Norma to “tell the girls to get
the fuck out of here because I have a gun, and I will start
shooting.” A search days later revealed a holster and a box of
ammunition in his bedroom, to which no one else had access.
This evidence belies the argument that possession of the
weapon and the assault were simultaneous, justifying a stay of
sentence. Appellant possessed a gun and threatened to use it
before the confrontation began. The sentence was properly
executed.
DISPOSITION
The judgment is conditionally reversed and we remand to
the trial court to conduct another in camera hearing on the
discovery motion, as described above, to make clear whether
there are any discoverable complaints of dishonesty. If there is
no discoverable information in the file, then the trial court is
ordered to reinstate the original judgment and sentence, and the
judgment is ordered affirmed. If, however, there is relevant
discoverable information in the officer’s file, appellant should be
given an opportunity to determine if the information would have
led to any relevant, admissible evidence that he could have
presented at trial. If appellant is able to demonstrate that he
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was prejudiced by the denial of the discovery, the trial court shall
order a new trial. If appellant is unable to show prejudice, then
the conviction is ordered reinstated and the judgment is ordered
affirmed. As to other grounds raised in this appeal, the
convictions are otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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