People v. Porter CA2/6 ( 2022 )

Filed 10/25/22 P. v. Porter CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B313385
(Super. Ct. No. 16F-06712)
Plaintiff and Respondent, (San Luis Obispo County)
v.
JASON ROBERT PORTER,
Defendant and Appellant.
Jason Robert Porter appeals a judgment following
conviction of sexual penetration or oral copulation with a child
under the age of 10 years (seven counts); lewd acts on a child
under the age of 14 years (eight counts); possession of child
pornography; and misdemeanor invasion of privacy by means of a
concealed camera or recorder (35 counts), with a finding of
multiple victims under the age of 14 years. (Pen. Code, §§ 288.7,
1
subd. (b), 288, subd. (a), 311.11, subd. (c), 647, subd. (j)(3)(A),
667.61, subd. (j)(2).)1 We affirm.
FACTUAL AND PRFo;eOCEDURAL HISTORY
Over a period of years, Porter committed sexual offenses
against four minor victims who were younger than 14 years old,
including three victims younger than 10 years old. Porter also
induced minors to engage in sexual conduct that he filmed and
photographed.
The victims were children of the long-time neighbor family
L. with whom Porter and his family were friends. In the evening
of June 23, 2016, Mrs. L. found Porter taking an intimate
photograph of her daughter. Mrs. L. confronted Porter and her
son called for police assistance. Porter then threw his cellular
telephone into a neighboring field.
Police Officer Jeff DePetro arrived and arrested Porter.
DePetro retrieved the telephone from the field and looked at the
images stored in it. Mrs. L. also handed DePetro a digital camera
that she took from Porter. DePetro later went to Porter’s home
and, pursuant to a search warrant, searched his locked office.
There, he recovered computers and camcorders, among other
property. The computers and cameras contained images of
sexual acts between Porter, the L. children, and other children,
actual and simulated sexual conduct between children, as well as
images of a person using the Porters’ guest bathroom. Porter was
identified in some videos and photographs by his watch and his
voice.
Following a court trial, the court convicted Porter of seven
counts of sexual penetration or oral copulation with a child under
the age of 10 years; eight counts of lewd acts on a child under the
1 All further statutory references are to the Penal Code.
2
age of 14 years; possession of child pornography; and 35 counts of
misdemeanor invasion of privacy by means of a concealed camera
or recorder. (§§ 288.7, subd. (b), 288, subd. (a), 311.11, subd. (c),
647, subd. (j)(3)(A).) It also found that Porter committed the
criminal offenses against more than one victim under the age of
14 years. (§ 667.61, subd. (j)(2).) The court sentenced Porter to a
five-year determinate term plus 280 years to life, ordered victim
restitution, imposed various fines and fees, and awarded Porter
2,082 days of presentence custody credit. Except for the
misdemeanor invasion of privacy convictions and one count
stayed pursuant to section 654, the court imposed consecutive
sentences for all convicted counts. In selecting sentence, the
court found no factors in mitigation.
Porter appeals and contends that: 1) his motion pursuant
to Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537-538,
requires our independent review of the trial court’s in camera
hearing regarding police personnel files; and 2) Senate Bill No.
567, amending section 1170 regarding imposition of upper term
sentencing, requires resentencing for count 17, possession of child
pornography. (§ 311.11.) By supplemental brief, Porter also
contends that his waiver of his right to a jury trial was not
knowing and intelligently made, the advisements being defective.
DISCUSSION
I.
Porter requests that we review the in camera hearing and
the sealed personnel records of Paso Robles Police Officers Jeffery
DePetro and Christopher McGuire to determine whether the trial
court failed to disclose all relevant and discoverable information
contained within the files pursuant to Pitchess v. Superior Court,
supra, 11 Cal.3d 531.
3
A defendant must establish good cause for discovery of a
police officer's confidential personnel records that contain
information relevant to the defense. (Pitchess v. Superior Court,
supra, 11 Cal.3d 531, 537-538.) Good cause is a “ ‘relatively low
threshold’ ” and requires a showing that 1) the personnel records
are material to the defense, and 2) a stated reasonable belief that
the records contain the type of information sought. (People v.
Thompson (2006) 141 Cal.App.4th 1312, 1316.) Good cause
contemplates “a logical link between the defense proposed and
the pending charge.” (Warrick v. Superior Court (2005) 35
Cal.4th 1011, 1021.)
When the trial court finds good cause and conducts an in
camera review pursuant to Pitchess, it must make a record that
will permit future appellate review. (People v. Mooc (2001) 26
Cal.4th 1216, 1229-1230.) A court reporter should memorialize
the statements made by the custodian of the police personnel
records and any questions asked by the court. (Ibid.) The court
is afforded “wide discretion” in ruling on a motion for access to
law enforcement personnel records. (People v. Yearwood (2013)
213 Cal.App.4th 161, 180 [decision will be reversed only on a
showing of abuse of discretion].)
Our review of the sealed personnel file and the transcript of
the in camera hearing reveals that the trial court did not abuse
its discretion by not disclosing further materials. The court
properly conducted the Pitchess hearing and further sealed
personnel documents were not subject to disclosure.
II.
Porter argues that the recent enactment of Senate Bill No.
567 (Stats. 2021, ch. 731, § 1.3) requires a remand for
resentencing pursuant to section 1170, subdivision (b), as
4
amended. The Attorney General concedes that the recent
amendment applies retroactively to Porter, but contends that any
error is harmless beyond a reasonable doubt. (In re Estrada
(1965) 63 Cal.2d 740, 745 [amendments to statutes that reduce
punishment for crime apply to all defendants whose judgments
are not yet final].)
The trial court imposed an upper term sentence for count
17, possession of child pornography. (§ 311.11.) The court found
no factors in mitigation of sentence and six factors in aggravation
of sentence, including the factor of multiple victims who were
particularly vulnerable.
In imposing consecutive sentences, the trial court relied
upon the following aggravating factors: 1) the crimes involved
great violence and cruelty; 2) the multiple victims were
particularly vulnerable; 3) the manner of commission of the
crimes indicated planning and sophistication; 4) defendant
possessed a large amount of contraband (child pornography); 5)
defendant took advantage of a position of trust or confidence; and
6) defendant presents a serious danger to society. (Cal. Rules of
Court, rule 4.421(a) & (b).)
Senate Bill No. 567, which became effective January 1,
2022, amended section 1170 by making the middle sentencing
term the presumptive sentence unless certain circumstances
exist. (Adding § 1170, subd. (b)(1), (2), (3).2) Pursuant to the
2 Section 1170, subdivision (b)(1), (2), (3) reads:
“(b)(1) When a judgment of imprisonment is to be imposed and
the statute specifies three possible terms, the court shall, in its
sound discretion, order imposition of a sentence not to exceed the
middle term, except as otherwise provided in paragraph (2).
“(2) The court may impose a sentence exceeding the middle term
only when there are circumstances in aggravation of the crime
5
amendment, the trial court may impose an upper term sentence
only where there are circumstances in aggravation and the facts
underlying those circumstances have been stipulated by the
defendant or found true beyond a reasonable doubt by the fact-
finder. The court may also rely upon certified records of the
defendant’s prior convictions.
Any fact-finding error here is harmless beyond a reasonable
doubt because the trial court “unquestionably would have found
true” (and did find) at least one aggravating circumstance beyond
a reasonable doubt. (People v. Sandoval (2007) 41 Cal.4th 825,
839.) A single aggravating factor is sufficient to support an upper
term. (People v. Osband (1996) 13 Cal.4th 622, 728; People v.
Flores (2022) 75 Cal.App.5th 495, 500-501.) Although the court
stated the aggravating factors for consecutive sentences, the
same factors apply to imposition of the upper term for count 17.
that justify the imposition of a term of imprisonment exceeding
the middle term, and the facts underlying those circumstances
have been stipulated to by the defendant, or have been found true
beyond a reasonable doubt at trial by the jury or by the judge in a
court trial. Except where evidence supporting an aggravating
circumstance is admissible to prove or defend against the charged
offense or enhancement at trial, or it is otherwise authorized by
law, upon request of a defendant, trial on the circumstances in
aggravation alleged in the indictment or information shall be
bifurcated from the trial of charges and enhancements. The jury
shall not be informed of the bifurcated allegations until there has
been a conviction of a felony offense.
“(3) Notwithstanding paragraphs (1) and (2), the court may
consider the defendant’s prior convictions in determining
sentencing based on a certified record of conviction without
submitting the prior convictions to a jury. This paragraph does
not apply to enhancements imposed on prior convictions.”
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During sentencing, the trial judge stated: “I’ve been doing
this a long time, and I’ve seen a lot of things, and it was very
difficult . . . for me to watch. . . . It was horrific. [E]ach of these
survivors not only were they really young, in one case I think a
[one] year old, but . . . they were sleeping. And a couple of times
when Mr. Porter’s anatomy . . . was in the picture, the child was
asleep. . . . So to make sure that he never gets released [the court
imposed consecutive sentencing].”
Remand for resentencing is unnecessary. (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391 [remand for resentencing
unnecessary where record “ ‘clearly indicate[s]’ ” trial court would
have reached same conclusion even if it were aware of its
discretion].) Here the court convicted Porter of crimes against
four minor victims and the court cited Porter’s vulnerable victims
as one factor in aggravation. The court also relied upon the great
quantity of pornography recovered at the Porter home. In
addition, the court chose to impose consecutive, not concurrent
sentences throughout the felony sentencing, indicating the court’s
reluctance to impose lesser terms. Remand for resentencing is
unnecessary and would be an idle act.
III.
By supplemental brief, Porter asserts that he did not
knowingly and intelligently waive his right to a jury trial
pursuant to the totality of the circumstances. He contends that
the waiver colloquy was devoid of advisements explaining the
basic mechanics of a jury trial. (People v. Sivongxxay (2017) 3
Cal.5th 151, 169-170; id. at p. 169 [recommending a “robust oral
colloquy in evincing a knowing, intelligent, and voluntary waiver
of a jury trial”].) Porter argues that the error is structural,
compelling reversal of the judgment.
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In April 2017, the San Luis Obispo County District
Attorney filed a 59-count information against Porter. Porter was
represented by counsel until May 2019, when he exercised his
rights pursuant to Faretta v. California (1975) 422 U.S. 806.
Thereafter, for approximately two years, Porter represented
himself and filed motions for discovery and to suppress evidence,
among others. Porter also engaged with the prosecutor and the
trial court in setting jury trial dates, dates for summoning of
panels, and rescheduling.
In May 2021, Porter sought reappointment of counsel. On
May 21, 2021, the trial court reappointed counsel and this
colloquy ensued concerning a jury trial:
Porter: “[M]y decision or request would be that we have a
trial by court. And as far as I’m informed, [the prosecutor] has
agreed to that. So I’m willing to waive my right to a jury trial
and proceed straight to a court trial.”
The prosecutor: “The People would waive jury if that’s
what the defendant is requesting.”
The Court [speaking to defense counsel]: “And you agree
that Mr. Porter understands his right to a jury trial. You’ve
discussed it thoroughly with him. And you believe it’s in his best
interest to waive jury?”
Defense Counsel: “Correct.”
The Court: “All right. Then I’ll accept the waivers from the
defendant and from the People. And we will proceed with a
bench trial.”
In Sivongxxay, our Supreme Court offered general guidance
to ensure that a defendant’s jury trial waiver is knowing and
intelligent. The court recommended that trial courts advise a
defendant of the basic mechanics of a jury trial in a waiver
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colloquy, including that a jury is comprised of 12 members of the
community, the defendant through counsel may participate in
jury selection, all 12 jurors must unanimously agree to render a
verdict, and if a defendant waives his right to a jury trial, a judge
alone will decide his or her guilt or innocence. (People v.
Sivongxxay, supra, 3 Cal.5th 151, 169-170.) Our Supreme Court
also recommended that the trial court take additional steps to
ensure on the record that the defendant comprehends what the
jury trial right entails, e.g., by asking whether the defendant had
an adequate opportunity to discuss the decision with his
attorney, by asking whether counsel explained to the defendant
the fundamental differences between a jury trial and a bench
trial, or by asking the defendant directly if he understands the
right being waived. (Ibid.)
Failure to follow the Sivongxxay guidelines does not
necessary result in the absence of a knowing and intelligent
waiver, however. Instead, we examine the totality of the
circumstances. (People v. Sivongxxay, supra, 3 Cal.5th 151, 167.)
“[A] trial court’s adaptation of or departure from the
recommended colloquy in an individual case will not necessarily
render an ensuing jury waiver invalid. . . . Reviewing courts
must continue to consider all relevant circumstances in
determining whether a jury trial waiver was knowing, intelligent,
and voluntary.” (Id. at p. 170, citations omitted.)
Considering the totality of the circumstances, we conclude
that Porter knowingly and intelligently waived his right to a jury
trial. (People v. Morelos (2022) 13 Cal.5th 722, 753 [review of
jury waiver considers the totality of circumstances “unique to
each case”].) Porter initiated the request for a court trial and the
record reveals no hesitation by Porter in entering the waiver or
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any confusion regarding the consequences of the waiver. Porter,
in propria persona, had scheduling discussions with the court for
approximately two years regarding a jury trial date and
impaneling of a jury. Moreover, defense counsel informed the
court that Porter understood his right to a jury trial and that it
had been “discussed . . . thoroughly” by counsel. We presume
counsel is competent and informed regarding constitutional and
statutory law, including jury trial concerns. (People v. Barrett
(2012) 54 Cal.4th 1081, 1105.) The circumstances unique to this
case indicate that Porter’s jury trial waiver was valid. (People v.
Doyle (2016) 19 Cal.App.5th 946, 953 [waiver of jury trial valid
because defense counsel discussed waiver with defendant on two
occasions and “[t]here is nothing in the record to support that
defendant was confused as to the right to a jury trial or that he
did not knowingly waive that right”].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Barry T. LaBarbera, Judge
Superior Court County of San Luis Obispo
______________________________
Jennifer A. Mannix, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
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