People v. Davis CA2/8 ( 2021 )

Filed 8/2/21 P. v. Davis CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B306557
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA472810)
v.
KERRY ODELL DAVIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark S. Arnold, Judge. Affirmed.
Matthew Alger, under appointment by the Court of Appeal,
for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Noah P. Hill,
Supervising Deputy Attorney General, and Kathy S. Pomerantz,
Deputy Attorney General, for Plaintiff and Respondent.
____________________
A jury convicted Kerry Odell Davis of two robberies. Davis
challenges the trial court’s Pitchess ruling, as well as an incorrect
version of CALCRIM No. 226 and the denial of his Romero
motion. We affirm. Undesignated statutory citations are to the
Penal Code.
I
Davis’s three robberies
The jury convicted Davis of two robberies. We call the first
the Miranda robbery and the second the Garcia robbery. We call
a third robbery the Hur robbery; it was not charged but it was a
part of the evidence. This appeal does not challenge evidence
about the Hur robbery.
Miranda robbery
The Miranda robbery was on April 1, 2017. That evening
Israel Hernandez went with his friend Victor Miranda to the
Rodeo Room bar. They left and split up at Pico Boulevard. Video
from the bar’s security camera showed a man resembling Davis
ride by on a bike in the direction Miranda went shortly after they
left.
Around 2:30 a.m., paramedics found Miranda bloody and
unconscious on the ground. He had no identification on him.
Miranda has remained in a vegetative state since then. He
cannot speak, recognize family members, or care for himself.
At 3:11 a.m., Davis tried to use Miranda’s debit card to get
money from an ATM about five miles from where paramedics
found Miranda. The transactions failed because Davis did not
know the PIN.
Garcia robbery
The Garcia robbery was on November 5, 2017. Catalino
Garcia and his wife returned from a restaurant around 2:00 a.m.
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Garcia drank several beers at the restaurant. Garcia stayed
outside his apartment building to smoke while his wife went
inside. Security video showed a man who looked like Davis ride
by on a bike. The man approached Garcia, there was a brief
exchange, and suddenly the man punched Garcia. Garcia
collapsed and hit his head on the ground. The man rifled through
Garcia’s pockets and got his wallet. Davis admitted he is the
man in the video.
When Garcia came to, his head was bleeding, his jaw hurt,
and his wallet was gone. He was in the hospital for three days.
Doctors put a metal plate in his jaw, which continues to give him
pain.
Hur robbery
The jury heard about a third robbery that was not charged
but about which the prosecution offered evidence. On September
23, 2017, Benjamin Hur went to a karaoke bar on a date. He had
several drinks. Around midnight, he stepped outside to get some
air. He was sitting on a stone wall playing on his phone when an
assailant hit him on his lower left jaw. When he regained
consciousness, he realized his phone, wallet, and $5,700 watch
were missing. Later that day, Davis pawned the watch.
Doctors wired Hur’s jaw shut for six months. Hur still
cannot eat some foods. He may require more surgery.
The police investigation
Six police officers investigated this case: Vinton, Carranza,
Adams, Rodriguez, Hidalgo, and Hewitt. The trial court granted
Davis’s Pitchess motion about Vinton and Carranza but denied it
as to the other four. We detail the role these six officers took in
the investigation of Davis.
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Detectives Vinton and Adams investigated the Miranda
robbery. Vinton made a crime alert flyer from the images from
the ATM where Davis tried to use Miranda’s debit card. The
detectives also collected video from the Rodeo Room.
Detective Carranza interviewed Hernandez and gave
information about the interview to Vinton.
Detective Rodriguez spoke with Garcia and got surveillance
video from the manager of Garcia’s apartment building.
Officers Hidalgo and Hewitt arrested Davis on November 8,
2018. Together with another detective, Carranza took Davis to
the station. Vinton interviewed Davis that day. Davis identified
himself in the videos from the ATM and the surveillance camera
at Garcia’s apartment building, but denied robbing Miranda,
claiming he found the debit card on the ground.
Vinton wrote an arrest report and a follow up investigation
report.
Davis did not testify at trial. The jury convicted Davis of
two counts of second degree robbery. (§ 211.) (The prosecutor did
not bring charges related to the Hur robbery.) The jury found
true allegations Davis personally inflicted great bodily injury
against Miranda and Garcia. (§ 12022.7, subd. (b).) The trial
court found true allegations Davis had three prior convictions for
purposes of the Three Strikes Law. (§§ 667, subd. (d), 1170.12,
subd. (b).) The trial court denied Davis’s Romero motion and
sentenced him to 58 years to life.
II
We reject Davis’s three appellate arguments.
A
Davis incorrectly argues the trial court should have
granted his Pitchess motion as to Adams, Hewitt, Hidalgo, and
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Rodriguez. (Pitchess v. Superior Court (1974) 11 Cal.3d 531(Pitchess); see also Evid. Code, § 1043.)
A successful Pitchess motion requires a defendant (1) to
establish a logical link between a defense proposed to the pending
charge, and (2) to articulate how the discovery sought would
support that defense, or how it would impeach the officer’s
version of events. (Warrick v. Superior Court (2005) 35 Cal.4th
1011, 1021.) We call this “the two-step process.”
We ordinarily review a Pitchess order for an abuse of
discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
Review is independent when we interpret the statute itself.
(Riske v. Superior Court (2016) 6 Cal.App.5th 647, 657 (Riske).)
Davis’s challenge fails under both standards of review.
The trial court found Davis showed good cause as to Vinton
and Carranza. The trial court based this finding on allegations
Vinton admitted at a Board of Rights hearing he failed to review
a police report he should have known contained false information
because his partner had switched the names of the codefendants
and Carranza had been sued for falsifying evidence in a federal
civil case.
Davis argues that, if he shows good cause as to one officer,
the court should impute good cause as to any other officer in any
way related to his case.
This argument is illogical. It posits one bad apple means
all apples are bad.
Davis’s opening brief satisfies neither step of the two-step
process. The brief does not explain how discovery about the other
four officers could support a defense for him or how it could
impeach those officers’ version of events. Davis’s opening brief
does not mention any possible defense for him: failure of proof,
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identity, lack of intent, provocation, self defense, and so on. And
because these four officers did not testify at trial, none gave the
jury a version of events Davis could have impeached.
Davis argues the other four officers “signed off” on reports
by Vinton or Carranza. This assertion does not explain how they
did that, or identify a defense, or suggest how discovery could
impeach anyone’s version of events.
Davis’s citations do not assist him.
Riske, supra, 6 Cal.App.5th 647 is irrelevant. It held
discovery was proper in a civil action when the discovery would
show whether officers who won promotions were less qualified
than the civil plaintiff, who was passed over. Thus the discovery
could reveal the employer’s reasons for the promotions were
pretextual. (Id. at pp. 657–665.) Davis makes no similar
showing of good cause.
Another inapplicable holding comes from Larry E. v.
Superior Court (1987) 194 Cal.App.3d 25 (Larry E.). This case
held it was wrong to deny discovery about an officer named
Loomis. The petitioner alleged Loomis beat him during
petitioner’s arrest. Loomis’s alleged excessive violence could, the
court held, assist the petitioner’s defense of self-defense. (Id. at
pp. 28–33.) Davis makes no similar showing of good cause.
Cadena v. Superior Court (1978) 79 Cal.App.3d 212, 218–
223, is not pertinent for the same reason.
Pierre C. v. Superior Court (1984) 159 Cal.App.3d 1120,
1122–1123, also is not on point. The case is similar to Larry E.,
supra, 194 Cal.App.3d 25, except the proposed defense was false
arrest rather than self-defense.
Davis’s Pitchess argument lacks merit.
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B
Davis contends the trial court committed prejudicial error
by giving the jury a written and inaccurate version of CALCRIM
No. 226. Both sides agree the written instruction was incorrect.
The form version of CALCRIM No. 226 reads, with our
emphasis:
“If you decide that a witness deliberately lied about
something significant in this case, you should consider not
believing anything that witness says. Or, if you think the witness
lied about some things, but told the truth about others, you may
simply accept the part that you think is true and ignore the rest.”
The written version of the instruction provided to the jurors
read, with our emphasis:
“If you decide that a witness deliberately lied about
something significant in this case, you should not consider
anything that witness says. Or, if you think the witness lied
about some things, but told the truth about others, you may
simply accept the part that you think is true and ignore the rest.”
Davis argues that, because it was clear he lied in his
interview with Vinton, the jury must have interpreted this
instruction to mean they could not consider anything he said.
This prejudiced him, he maintains, because his statements to
Vinton that he found Miranda’s debit card were proof he did not
rob Miranda.
This misinstruction did not prejudice Davis.
First, the instruction applied to witnesses. Because Davis
did not testify, he was not a witness. This is especially the case
because CALCRIM No. 358, which the court also provided to the
jury, specifically applied to a defendant’s out-of-court prior
statements. This instruction made clear the jury was to decide
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what importance to give Davis’s statements to Vinton. Under
these circumstances, any error was harmless beyond a reasonable
doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v.
Watson (1956) 46 Cal.2d 818, 836.)
Second, the evidence of Davis’s guilt outweighed the
evidentiary value of Davis’s claim he found Miranda’s debit card
on the ground.
Video evidence showed a man resembling Davis riding a
bike in the same direction as Miranda shortly after Miranda left
the Rodeo Room. The prosecutor also demonstrated many
similarities between the robbery of Garcia, which Davis admitted
he committed, and the robbery of Miranda. Both times the
assailant approached the men when they were alone and
intoxicated. Miranda’s injuries matched Garcia’s: trauma to the
left jaw. The robber took each man’s wallet. These details also
match the robbery of Hur. The fact Davis pawned Hur’s watch
right after the robbery corroborated Davis’s identity as the
robber.
The error did not prejudice Davis.
C
Davis argues the trial court abused its discretion by
denying his Romero motion. (People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 (Romero).) This argument is unavailing.
A trial court properly dismisses a prior strike only in the
extraordinary case where a criminal who has committed multiple
serious felonies can be said to be outside the spirit of the Three
Strikes Law. (People v. Carmony (2004) 33 Cal.4th 367, 378
(Carmony).)
Davis’s case is not extraordinary. It is within the spirit of
the Three Strikes Law.
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The information alleged Davis suffered three prior strike
convictions: a conviction for attempted robbery (§§ 664 & 211) in
1983, and convictions for robbery (§ 211), and battery causing
serious bodily injury (§ 243, subd. (d)) in 1988. The trial court
found the prior strikes true.
Davis argues the court abused its discretion because the
judge said, “There’s nothing about this defendant on which I can
grant a motion to dismiss any of these prior convictions.” Davis
contends this shows the trial court did not consider the evidence
submitted in mitigation. This claim does not follow. The court’s
statement announced its conclusion. It does not show the court’s
review was cursory or substandard.
Davis’s criminal history offers little to support hope for
rehabilitation. Davis’s prior strike convictions in 1983 and 1988
were remote in time, but Davis has suffered five additional felony
convictions as well as eight misdemeanor convictions. Felonies in
2008 and 2012 involved violent fist attacks, which was Davis’s
method here. Under these circumstances, the lapse of time does
not favor Davis. (See People v. Humphrey (1997) 58 Cal.App.4th
809, 813.)
Davis points out he did not use weapons in these crimes.
This case shows how much damage fists alone can do.
Davis argues his age—57 at sentencing—mitigates his
culpability. One might equally conclude the opposite. In
maturity, Davis has not outgrown violence. (See People v. Jordan
(1986) 42 Cal.3d 308, 316.)
Davis argues substance abuse was a mitigating factor.
Davis apparently has not tried to combat substance abuse or
addiction. (See Carmony, supra, 33 Cal.4th at pp. 378–379.)
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Davis suggests the robberies were attempts to provide for
himself and his son. Putting someone into a vegetative state is
not a crime of survival.
Family, friends, and employers wrote letters of support for
Davis. Their assertions Davis was remorseful contrast with
Davis’s own claim at the sentencing hearing that he “did not do
this.”
The trial court did not abuse its discretion in finding Davis
was within the spirit of the Three Strikes Law.
DISPOSITION
We affirm the judgment.
WILEY, J.
We concur:
STRATTON, 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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