People v. Torres CA2/4 ( 2016 )

Filed 8/4/16 P. v. Torres CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B266700
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA076080)
v.
RAYMUNDO TORRES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Susan M. Speer, Judge. Reversed in part; Affirmed in part; Vacated in part and
Remanded.
Law Offices of John F. Schuck and John F. Schuck, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Paul M.
Roadarmel, Jr., and Connie H. Kan, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted appellant Raymundo Torres of two counts of attempted
premeditated murder (Pen. Code, §§ 664/187, subd. (a)),1 one count of shooting at
an occupied vehicle (§ 246), one count of assault with a firearm (§ 245, subd.
(a)(2)), and two counts of being a felon in possession of a firearm (§ 29800, subd.
(a)(1)). Appellant challenges the denial of his Wheeler/Batson motion. (People v.
Wheeler (1978) 22 Cal.3d 258, overruled in part by Johnson v. California (2005)
545 U.S. 162; Batson v. Kentucky (1986) 476 U.S. 79.) Appellant also argues that
one of his convictions for possession of a firearm by a felon should be reversed.
He further asks that we independently review the transcript of the in camera
hearing held regarding his Brady motion. (Brady v. Maryland (1963) 373 U.S.
83.) Finally, appellant asks that we remand for resentencing on count 5 and that
we correct clerical errors in the abstracts of judgment.
We affirm the trial court’s denial of appellant’s Wheeler/Batson motion. We
have independently reviewed the Brady transcript and find no error. However, we
reverse the judgment on count 6, one of appellant’s convictions for possession of a
firearm by a felon. We vacate the sentence imposed on count 5 and remand for the
trial court to clarify whether the sentence is imposed consecutive to or concurrent
with the indeterminate sentence, and we direct the superior court to correct clerical
errors in the abstracts of judgment, as discussed below. In all other respects, the
judgment is affirmed.
1
Further unspecified statutory references are to the Penal Code.
2
BACKGROUND
Prosecution Evidence
Count 5 (Assault with a Firearm)
On November 15, 2013, around 1:50 a.m., Jose Lopez went to the police
station by the courthouse in Van Nuys to turn himself in on a bench warrant that
had been issued for his failure to appear in court. The officer he spoke with was
unable to find the bench warrant, so Lopez left and sat on a wall outside the
courthouse.
As Lopez was sitting on the wall, appellant, another man, and a woman
approached Lopez. Appellant walked up to Lopez and asked him, “Where the fuck
you from?” Lopez understood this to mean appellant was asking what gang he was
from, but Lopez responded that he was not in a gang. Appellant pointed a gun at
Lopez’s head and repeated his question more aggressively. Lopez again said that
he was not in a gang. Appellant repeated the question three to four times.
Appellant was standing about three feet from Lopez and kept the gun pointed at
Lopez throughout the incident.
At one point, Lopez offered appellant his wallet, telling him that he had over
a hundred dollars in it. Appellant replied, “Yeah, but fuck that right now, I’m
taking care of business.” Appellant also mentioned his gang, B.V.N., which Lopez
knew to be a Van Nuys gang.
Appellant told Lopez to pull up his shirt so he could see if Lopez had any
tattoos. When Lopez lifted his shirt, appellant pointed his gun at Lopez’s stomach.
After appellant saw that Lopez had no tattoos, he hit Lopez in the head with the
gun. He hit Lopez so hard that Lopez spun around and ended up facing the
courthouse. Appellant then told Lopez to lift his shirt to see if he had tattoos on his
back. After Lopez showed his back to appellant, appellant said, “This is big,
3
fuckin’, bad ass B.V.N.” Appellant told Lopez his gang moniker and walked away
with his two companions.
Lopez waited until appellant was far enough away that “his aim would be
off,” then Lopez ran to the police station. A short time later Lopez heard gunshots.
Lopez identified appellant from a photographic six-pack lineup prepared by
the investigating officer, Detective Russell Pungrchar.
Counts 1-3 (Attempted Murder; Shooting at an Occupied Vehicle)
Around 1:50 a.m. on November 15, 2013, Adam Santhon and Damarie
Fawcett were driving near the Van Nuys courthouse when they saw appellant
walking in the middle of the street. Appellant turned around and made a gang sign
at Santhon and Fawcett. Fawcett saw something in appellant’s hand and was
afraid appellant was going to shoot at them. Appellant began running toward
Santhon’s car, and Santhon saw him pull out a weapon. Fawcett saw appellant
point a gun at them and told Santhon he recognized appellant from school.
Santhon “slammed on the gas and took off.” As Santhon sped away, appellant
started shooting; Santhon and Fawcett heard six to seven gunshots.
Santhon and Fawcett pulled over and found a bullet hole in the car. Fawcett
flagged down a passing police car, and he and Santhon told the officers what had
happened. One of the officers told Santhon that the man who had shot at them
“had just pistol whipped somebody on Van Nuys.”
Fawcett told the police that appellant’s nickname was “Chucky.” One of the
officers showed Fawcett some pictures on his cell phone, and Fawcett identified
appellant as the shooter. Santhon subsequently identified appellant in a
photographic six-pack lineup.
4
Officer Lance Novak had been assigned to the Van Nuys gang detail since
April 2011 and testified about the Barrio Van Nuys gang. He opined that appellant
was a member of the gang, based on his numerous contacts with appellant, who
admitted being a member, and on appellant’s multiple gang tattoos. He testified
that appellant’s gang moniker was “Chucky” and that the gang was involved in
drugs, extortion, attempted murders, and robberies. When presented with a
hypothetical based on the facts of this case, Officer Novak opined that the acts
were done for the benefit of the gang.
Detective Pungrchar had spoken with appellant in 2008, 2009, and 2011. On
those occasions, appellant told Detective Pungrchar that his nickname was
“Chucky” and that he had been a member of the Barrio Van Nuys gang for two to
three years as of 2011. Appellant was arrested on December 2, 2013.
Defense Evidence
Dr. Mitchell Eisen, an expert in eyewitness identification, testified that it is
not unusual for many witnesses to mistakenly identify the same person. He
testified that stress and trauma can have an adverse affect on memory and that it is
difficult for witnesses to identify someone of a different racial background. Dr.
Eisen also testified about potential problems with photographic lineups.
Procedural Background
Appellant was charged by information with six counts: counts 1 and 2,
attempted premeditated murder (§§ 664/187, subd. (a)); count 3, shooting at an
occupied motor vehicle (§ 246); counts 4 and 6, possession of a firearm by a felon
(§ 29800, subd. (a)(1)); and count 5, assault with a firearm (§ 245, subd. (a)(2)).
The information alleged as to counts 1, 2, and 3 that appellant personally used a
5
firearm (§ 12022.53, subd. (b)) and personally and intentionally discharged a
firearm (§ 12022.53, subd. (c)), and as to count 5 that he personally used a firearm
(§ 12022.5). It alleged as to all counts that the offenses were committed for the
benefit of a gang. (§ 186.22, subd. (b)(1)(C).)
The jury found appellant guilty of all six counts and found the firearm and
gang allegations to be true. The court sentenced appellant as follows: count 1, life
plus 20 years for the firearm allegation; count 2, life plus 20 years for the firearm
allegation, concurrent with count 1; count 3, the low term of three years plus five
years for the gang allegation,2 stayed pursuant to section 654; count 4, the low term
of two years, concurrent; count 5, the low term of two years plus three years for the
firearm allegation; and count 6, the low term of two years, stayed pursuant to
section 654. Appellant filed a timely notice of appeal.
DISCUSSION
I. Wheeler/Batson Motion
During jury selection, the prosecutor used peremptory challenges to excuse
three Hispanic jurors – Juror Nos. 3243, 8481, and 7321 – and one African
American juror – Juror No. 6655. At side bar, following the challenge to Juror No.
7321, defense counsel made a Wheeler/Batson motion. The trial court found a
prima facie case and asked the prosecutor to explain his reasons for excusing these
2
The trial court mistakenly stated that the total term on count 3 was seven years;
however, the minute order correctly states that it is eight years. (See People v. Thompson
(2009) 180 Cal.App.4th 974, 978 [“We realize the general rule is that the oral
pronouncements of the court are presumed correct. [Citation.] Nonetheless, under these
circumstances, we will deem the minute order and the abstract of judgment to prevail
over the reporter’s transcript. [Citations.]” ].) The court subsequently corrected the
mathematical error.
6
jurors. The prosecutor stated his reasons, which we discuss below. After hearing
the prosecutor’s explanations and defense counsel’s arguments, the trial court
found that the prosecutor’s reasons were credible and race-neutral. The court
therefore denied the Wheeler/Batson motion.
The test for analyzing Wheeler/Batson claims is well-established. “‘First,
the trial court must determine whether the defendant has made a prima facie
showing that the prosecutor exercised a peremptory challenge based on race.
Second, if the showing is made, the burden shifts to the prosecutor to demonstrate
that the challenges were exercised for a race-neutral reason. Third, the court
determines whether the defendant has proven purposeful discrimination. The
ultimate burden of persuasion regarding racial motivation rests with, and never
shifts from, the opponent of the strike. [Citation.]’ . . . [¶] ‘Review of a trial
court’s denial of a Wheeler/Batson motion is deferential, examining only whether
substantial evidence supports its conclusions. [Citation.] “. . . We presume that a
prosecutor uses peremptory challenges in a constitutional manner and give great
deference to the trial court’s ability to distinguish bona fide reasons from sham
excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort
to evaluate the nondiscriminatory justifications offered, its conclusions are entitled
to deference on appeal. [Citation.]” [Citation.]’ [Citation.]” (People v. Taylor
(2009) 47 Cal.4th 850, 885–886 (Taylor).) “Even a brief reference to the
prosecutor’s reasons and the trial court’s own observations of the challenged jurors
can constitute a sincere and reasoned evaluation of the credibility of the
prosecutor’s justifications. [Citations.]” (People v. Fiu (2008) 165 Cal.App.4th
360, 399.)
We discuss each challenged juror in turn. “A prosecutor must provide a
clear and reasonably specific explanation of legitimate reasons for exercising a
7
challenge. [Citation.] ‘The justification need not support a challenge for cause,
and even a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.] A
prospective juror may be excused based upon facial expressions, gestures, hunches,
and even for arbitrary or idiosyncratic reasons. [Citations.]” (People v. Aleman
(2016) 247 Cal.App.4th 660, 671 (Aleman).)
A. Juror No. 3243
Juror No. 3243, a Hispanic woman, stated that her brother was murdered by
the police in 1984 and that the charges against the officers were dismissed. When
asked how she felt about that she replied, “Not good, obviously.” Although she
was “not sure” whether she would automatically be biased against members of the
police department, she stated that she could set aside what happened to her brother
and evaluate the officers “as individuals.”
The prosecutor gave the following reason for excusing Juror No. 3243:
“Juror No. 3243, her brother was killed by cops. She said she wasn’t sure if she
was biased against law enforcement. That’s why I kicked her.” Defense counsel
argued that Juror No. 3243 specifically stated that she was not biased against the
police and would be able to evaluate the individual testimony of police officers.
“‘[A] prosecutor may reasonably surmise that a close relative’s adversary
contact with the criminal justice system might make a prospective juror
unsympathetic to the prosecution.’ [Citation.]” (People v. Jones (2013) 57 Cal.4th
899, 920; see also People v. Arellano (2016) 245 Cal.App.4th 1139, 1161
(Arellano) [“The use of peremptory challenges to exclude potential jurors who
have had negative experiences with the criminal justice system, or have relatives
and/or family members in prison, is not unconstitutional. [Citations.]”].) Although
Juror No. 3243’s brother may not have had adversarial contact with the criminal
8
justice system, his alleged murder by police officers certainly might be seen as
making the juror unsympathetic to law enforcement and thus to the prosecution.
Appellant argues that the prosecutor did not question Juror No. 3243 about
the killing. However, the juror’s statement that police officers “murdered” her
brother without any consequences expresses her beliefs about the killing; further
questioning was not necessary. Thus, even though Juror No. 3243 expressed the
ability to evaluate the testimony of police officers without bias, her experience is a
legitimate, nondiscriminatory justification for dismissing her.
B. Juror No. 8481
Juror No. 8481 was a single male Hispanic. He had graduated from culinary
school six to seven years previously and had worked as a chef ever since. His
“significant other” was a photographer. When the prosecutor asked about his
future plans, he replied that he planned to remain with his current company, which
was growing internationally and had room for advancement.
During questioning by defense counsel, the juror asked questions concerning
the effect of an acquittal of one charge on resolution of the other charges: “[Y]ou
said all four [charges] have to be proven beyond a reasonable doubt and if one of
them is not, he’s acquitted of all of them. Is that how it works?” Defense counsel
replied that the jurors had to consider each charge separately. The juror asked:
“So, for example, let’s say he gets proven guilty for the first charge, which was
[attempted premeditated murder] . . . , he doesn’t get fully – like fully proven
guilty for another one, does that one like fall to the wayside, the first one, or how
does that work?” After further explanation by defense counsel and the court that
each count had to be determined separately, the juror replied, “Okay, yes, then I
can, then I would be fine.”
9
The prosecutor gave the following explanation for dismissing Juror No.
8481: “[A]t first I liked him . . . when I initially saw him, but he didn’t have any
roots. He’s not married, got no kids. He just graduated from culinary school in
Pasadena. [¶] I don’t know how hard it is to try to get a job as a chef out there, but
he’s very young, limited life experience. [¶] I asked a lot of questions. Out of all
the jurors, the most interplay as far as the most dialogue between questions coming
from any of the jurors was with this juror 8481 and with [defense counsel]. That’s
why I got rid of him.”
As appellant points out, some of the prosecutor’s stated reasons were not
accurate. Juror No. 8481 had not “just” graduated from culinary school, but had
graduated six to seven years prior to trial. In addition, although the prosecutor
stated that the juror had no roots, in fact the juror had worked as a chef since
graduating from culinary school. He planned to continue working with the same
company, which was expanding globally, and he was in a relationship with a
“significant other,” who worked as a photographer.
However, as our Supreme Court has observed, “[t]he purpose of a hearing
on a Wheeler/Batson motion is not to test the prosecutor’s memory but to
determine whether the reasons given are genuine and race neutral. ‘Faulty memory
. . . that might engender a “mistake” of the type the prosecutor proffered to explain
[a] peremptory challenge are not necessarily associated with impermissible
reliance on presumed group bias.’ [Citation.] [An] ‘isolated mistake or
misstatement’ [citation] does not alone compel the conclusion that this reason was
not sincere.” (People v. Jones (2011) 51 Cal.4th 346, 366.)
Here, although the prosecutor was mistaken as to whether the juror had just
graduated and had no roots, the other reasons offered were accurate and race-
neutral. Juror No. 8481 was not married and did not have children. Appellant
10
argues that being single and having no children “is a suspect reason for challenging
a prospective juror.” However, limited life experience has been held to be “a race-
neutral explanation for a peremptory challenge. [Citations.]” (People v. DeHoyos
(2013) 57 Cal.4th 79, 108 (DeHoyos).)
The prosecutor also cited Juror No. 8481’s dialogue with defense counsel.
In that dialogue, the juror raised the issue of acquittal, and appeared to believe (at
least initially) that an acquittal of one charge required an acquittal of all. In light of
this exchange with defense counsel, the prosecutor could reasonably be concerned
that the juror might be inclined to render at least a partial defense verdict, or might
become confused as to the legal principles governing determination of the case.
On this basis, the excusal was not impermissible. “Jurors may be excused based
on ‘hunches’ and even ‘arbitrary’ exclusion is permissible, so long as the reasons
are not based on impermissible group bias. [Citation.]” (People v. Turner (1994)
8 Cal.4th 137, 165, disapproved on another ground in People v. Griffin (2004) 33
Cal.4th 536, 555, fn. 5); see Aleman, supra, 247 Cal.App.4th at p. 671 [“A
prospective juror may be excused based upon facial expressions, gestures, hunches,
and even for arbitrary or idiosyncratic reasons. [Citations.]”].)
C. Juror No. 7321
Juror No. 7321, a single male Hispanic, was a Fed Ex driver. In 2013, his
father was arrested for grand theft and was incarcerated for four months. When
asked if he thought his father was treated fairly by the police, he replied, “I hope
so.” Nonetheless, he believed that his father “got the punishment that fit the
crime.” He stated that this incident would not affect him as a juror.
The prosecutor gave the following explanation for dismissing Juror No.
7321. “He’s also a young man. He’s unmarried, he’s single. He has no kids. His
11
father went to state prison. [¶] I thought that, you know, the fact that he didn’t
know whether or not he was treated fairly by law enforcement, the fact that he
went to state prison for grand theft might make him feel biased. [¶] He’s also very
young and limited experience and had long hair and kind of tied up in a bun. [¶]
And I think, you know, that youth plus, you know, the lack of roots would tend to
make him, I guess, more susceptible particularly to some of the defense experts
that are going to be coming in. I’m going to be challenging them critically. [¶]
But as far as, you know, anyone with any academic degrees or, you know, being a
professor at any place, those are all going to be defense experts. And some of the
people that will evaluate them critically and I don’t think – I don’t think young
individuals like the young woman who is a mechanical engineer that I also kicked
are likely to do that.”
Defense counsel argued that Juror No. 7321’s father could not have gone to
state prison because it was only a four-month term and that the juror expressed the
opinion that his father was treated fairly. She further argued that there were other
jurors with family members charged with crimes. In addition, she pointed out the
prosecutor’s inconsistency in stating that Juror No. 7321 could not evaluate
scientific evidence, yet the other potential juror he thought would be unable to
evaluate scientific evidence was a mechanical engineer.
As noted above, limited life experience has been held to be a race-neutral
justification for a peremptory challenge. (DeHoyos, supra, 57 Cal.4th at p. 108.)
In addition, “[a] concern with a juror’s ability to understand the proceedings and
anticipated testimony is another proper basis for a challenge. [Citations.]” (Ibid.)
Thus, the prosecutor’s concern about Juror No. 7321’s susceptibility to defense
experts is a race-neutral justification. Finally, Juror No. 7321’s statement that he
“hope[d]” his father was treated fairly by the police indicates uncertainty regarding
12
his father’s treatment. Because a family member’s adverse experience with the
criminal justice system is a race-neutral justification for a peremptory challenge
(Arellano, supra, 245 Cal.App.4th at p. 1161), we defer to the trial court’s
conclusion. (See Taylor, supra, 47 Cal.4th at p. 886.)
D. Juror No. 6655
Juror No. 6655, an African-American male, said that five or six years
previously, his father had been arrested for battery. He did not know what
happened in his father’s case, but he believed his father was treated fairly and did
not think his father’s case would affect him as a juror. No family member or close
friend had ever been a crime victim or a witness to a crime. He had about 10
tattoos, which he described as representing important events in his life.
As to Juror No. 6655, the prosecutor stated, “he was interesting. His family
has – his father was arrested for something, he’s not sure what, some sort of
battery. We don’t know if it’s spousal battery. We don’t know if it was assault
with a deadly weapon. [¶] You know, he has two tattoos. He has one on the right
side of his neck, he has one on the back of his neck, and he said there’s eight other
tattoos. I don’t know what they are, what they represent. [¶] He has a very
interesting Twitter feed. I looked him up. He’s mentioned that he was on jury
duty. I didn’t like that. [¶] The Twitter feed also had a lot of information, you
know, to things where his comment would be ‘Where’s my gun,’ ‘I’ll go get my
gun,’ was in at least two Twitter feeds, so I didn’t like that as well.” Defense
counsel argued that there were other jurors with tattoos who were not kicked off
the panel, but the prosecutor stated that he kicked off the other juror who had
tattoos.
13
The prosecutor’s stated reasons are race-neutral. Juror No. 6655’s father had
been arrested and incarcerated. (See Arellano, supra, 245 Cal.App.4th at p. 1161.)
In addition, his numerous tattoos, and his comments on social media about guns
are nondiscriminatory justifications for dismissing him. (See Aleman, supra, 247
Cal.App.4th at p. 671 [prospective juror may be excused based on gestures,
hunches, and arbitrary reasons].)
E. Comparative Juror Analysis
Appellant argues that a comparative juror analysis shows that the responses
of Juror Nos. 3243, 8481, 7321, and 6655 were not different from the responses of
prospective jurors who were not dismissed. “Comparative juror analysis must be
performed for the first time on appeal on review of claims of error at
Batson/Wheeler’s third stage, as here, when the defendant relies on such evidence,
and when the record is adequate to permit the comparisons. [Citation.] The
reviewing court need only consider responses by stricken panelists or seated jurors
identified by the defendant in the claim of disparate treatment. [Citation.]”
(People v. Hamilton (2009) 45 Cal.4th 863, 902, fn. 12.) Appellant cites for
comparison Juror Nos. 1121, 6529, and 9381.3
Juror No. 6529 was the victim of two burglaries and a hit-and-run accident,
all of which were unsolved, but she believed she could be fair to appellant.
Appellant does not elaborate on his argument, but presumably the contention is
3
Juror No. 1121 was dismissed by the prosecutor, and therefore does not provide a
useful comparison to the challenged jurors dismissed by the prosecutor. (See Arellano,
supra, 245 Cal.App.4th at p. 1160 [“‘The rationale for comparative juror analysis is that a
side-by-side comparison [of the characteristics and voir dire responses] of a prospective
juror struck by the prosecutor with a prospective juror accepted by the prosecutor may
provide relevant circumstantial evidence of purposeful discrimination by the prosecutor.’
[Citation.]”].)
14
that the prosecutor dismissed Juror No. 3243, whose brother was murdered, but
accepted other jurors who were crime victims. In addition to Juror No. 6529, the
prosecutor accepted three other jurors who were crime victims, Juror Nos. 2152
(thefts of purses), 0512 (burglary), and 4905 (vandalism, theft, and burglaries).
However, the severity of these crimes does not compare to Juror No. 3243’s
statement that her brother was murdered by the police. Thus, the prosecutor’s
acceptance of Juror Nos. 6529, 2152, 0512, and 4905 does not establish that the
dismissal of Juror No. 3243 was based on discriminatory intent.
Appellant further argues that Juror No. 6529’s best friend’s husband is a
sheriff, but does not explain how this characteristic indicates discrimination in the
dismissal of Juror Nos. 3243, 8481, 7321, and 6655. The dismissed jurors did not
have close friends or family members employed by a law enforcement agency,
other than Juror No. 3243, whose sister was a clerk in an office where police
officers were trained. As discussed above, Juror No. 3243’s assertion that her
brother had been “murdered” by police officers provided a legitimate
nondiscriminatory justification for her dismissal.
Juror No. 9381 reported that her six-year-old daughter had been the victim
of molestation by a neighbor 40 years prior, but the perpetrator was found not
guilty by the jury. She thought the jury’s decision had been wrong, but she
believed that “the system worked as it should” and that she could be fair to both
sides. Appellant argues that Juror No. 9381 was accepted by the prosecutor but
again does not explain how this establishes discrimination. In contrast to Juror No.
9381, whose daughter was victimized by a neighbor, Juror No. 3243 stated that her
brother had been murdered by police officers, which clearly could have raised a
different concern for the prosecutor. This comparison is not sufficient to establish
invidious discrimination in the prosecutor’s exercise of peremptory challenges.
15
“The ultimate burden of persuasion regarding racial motivation rests with,
and never shifts from, the opponent of the strike. [Citation.]” (People v. Cox
(2010) 187 Cal.App.4th 337, 341.) Appellant has failed to establish that the
prosecutor’s peremptory challenges were based on purposeful discrimination.
II. Convictions for Possession of a Firearm
Appellant contends that one of his two convictions for possession of a
firearm by a felon must be reversed because the crime is a continuing offense. We
agree, and respondent concedes that appellant is correct.
“The Supreme Court has recognized that possession of a firearm by a felon
is a continuing offense. [Citations.] ‘The concept of a continuing offense is well
established. For present purposes, it may be formulated in the following terms:
“Ordinarily, a continuing offense is marked by a continuing duty in the defendant
to do an act which he fails to do. The offense continues as long as the duty
persists, and there is a failure to perform that duty.” [Citations.] Thus, when the
law imposes an affirmative obligation to act, the violation is complete at the first
instance the elements are met. It is nevertheless not completed as long as the
obligation remains unfulfilled. “The crime achieves no finality until such time.”’
[Citation.] [¶] ‘In the case of continuing offenses, only one violation occurs even
though the proscribed conduct may extender over [an] indefinite period.’
[Citations.]” (People v. Mason (2014) 232 Cal.App.4th 355, 365 (Mason).)
In Mason, the court reversed three of the defendant’s four convictions for
possession of a firearm by a felon, even though the four convictions stemmed from
four different dates of possession, months apart. The court reasoned that the
“crime was complete at the time he first possessed the gun because he violated the
duty imposed by the statute not to do so,” and that “the crime continued—as a
16
single offense—for as long as the same possession continued, i.e., so long as [the
defendant] continued to violate his duty under the statute. [Citations.]” (Mason,
supra, 232 Cal.App.4th at p. 366.)
Here, “there was no evidence that [appellant’s] possession of the gun in
question was interrupted, such that multiple separate offenses were committed.”
(Mason, supra, 232 Cal.App.4th at p. 366.) Appellant’s assault on Lopez and the
shooting at Santhon and Fawcett occurred minutes apart. There was no break in
appellant’s possession of the firearm. Indeed, the prosecutor argued that appellant
used the same gun in both incidents. One of appellant’s convictions for possession
of a firearm by a felon must be reversed. (Mason, supra, 232 Cal.App.4th at p.
367.)
III. Brady Motion
Appellant asks that we independently review the transcript of the in camera
hearing on his Brady motion regarding Officer Albers, who spoke with Santhon
and Fawcett and wrote the report on the shooting incident. We independently
review the sealed records of in camera hearings to determine whether the trial
court’s denial of disclosure of police personnel records constituted an abuse of
discretion. (People v. Myles (2012) 53 Cal.4th 1181, 1209.)
Appellant’s trial counsel asked the prosecutor for Brady discovery on
Officer Albers. Her request was based on the fact that Officer Albers had left both
the Los Angeles County Sheriff’s Department and the Los Angeles Police
Department within a short period of time, despite being a “fairly recent hire and
probably young.” She argued that the prosecutor had an affirmative duty to
disclose Brady material, including any discovery as to why Officer Albers left two
law enforcement agencies within such a short time period.
17
The court held an in camera hearing, at which Captain Ivan Minsal testified
that Officer Albers graduated from the police academy in August 2013 and was
assigned as a probationary patrol officer to the Van Nuys area. Officer Albers
resigned from the police department in February 2014 after receiving nine
unsatisfactory reports due to his job performance. Captain Minsal testified that
Officer Albers had “no integrity issues” but that he “just couldn’t grasp the things
that he needed to do as a police officer.” Captain Minsal had not examined the
officer’s personnel records, but he was not aware of any misconduct by the officer.
The trial court found there was no Brady material that needed to be
disclosed. Defense counsel argued that the evidence presented by the prosecution
was inadequate because Captain Minsal did not inspect Officer Albers’ personnel
file. The court found no probable cause existed for subpoenaing the personnel
records.
“Under Brady . . . and its progeny, the prosecution has a constitutional duty
to disclose to the defense material exculpatory evidence, including potential
impeaching evidence. The duty extends to evidence known to others acting on the
prosecution’s behalf, including the police. [Citations.] . . . For Brady purposes,
evidence is material if it is reasonably probable its disclosure would alter the
outcome of trial. [Citations.]” (People v. Superior Court (Johnson) (2015) 61
Cal.4th 696, 709-710 (Johnson).)
“By contrast, ‘[u]nder Pitchess, a defendant need only show that the
information sought is material “to the subject matter involved in the pending
litigation.” ([Evid. Code,] § 1043, subd. (b)(3).) Because Brady’s constitutional
materiality standard is narrower than the Pitchess requirements, any [information]
that meets Brady’s test of materiality necessarily meets the relevance standard for
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disclosure under Pitchess. [Citation.]’ [Citation.]” (Johnson, supra, 61 Cal.4th at
pp. 711-712.)
Appellant’s request for Brady material was based on the suggestion that
Officer Albers’ short employment history with the Los Angeles County Sheriff’s
Department and the Los Angeles Police Department may have affected the report
he wrote on the shooting incident. However, as the trial court reasoned, even if
Officer Albers “left under less than amiable terms from either department,” his
ability to take a report from Santhon and Fawcett probably would not have been
affected by any alleged misconduct. The court further noted that Officer Albers
“appeared to play a very minor role . . . in the case in chief.” The court described
defense counsel’s suggestion that there was Brady material based solely on Officer
Albers’ employment history as “total speculation.”
“‘There is no general constitutional right to discovery in a criminal case, and
Brady did not create one . . . .’ [Citations.] Moreover, ‘Brady . . . does not require
the disclosure of information that is of mere speculative value’ [citation] . . . .’”
(People v. Williams (2013) 58 Cal.4th 197, 259; see People v. Ashraf (2007) 151
Cal.App.4th 1205, 1214 [“mere speculation that there might have been something
useful for impeachment purposes in those reports is not sufficient to demonstrate a
Brady violation.”].) We have independently reviewed the sealed reporter’s
transcript of the in camera hearing, and we find no error or abuse of discretion.
IV. Abstract of Judgment
Appellant asks that we correct the abstract of judgment to reflect the
sentence imposed by the trial court. He further argues that the record is unclear as
to whether the trial court intended the sentence on count 5, assault with a firearm,
to be concurrent or consecutive. Respondent concedes that the trial court’s
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intention regarding the sentence on count 5 is unclear and that remand is
appropriate. Respondent also concedes that the abstract of judgment should be
corrected.
At the sentencing hearing, the trial court sentenced appellant on count 5 to
“the low term of two years in state prison plus the low term of three years for the
personal use of the gun allegation . . . , consecutive, for a principal term of five
years.” However, when the trial court was summarizing the sentence, it stated that
appellant “is sentenced to a determinate term of five years to run concurrent with
the indeterminate term.” On the determinate abstract of judgment, the term on
count 5 is placed in parentheses, indicating concurrent terms. Because the trial
court’s intent is unclear, the sentence on count 5 is vacated and the matter
remanded for the trial court to clarify its intention.
In addition, the abstracts of judgment contain clerical errors that should be
corrected. (See People v. Scott (2012) 203 Cal.App.4th 1303, 1324 [“As with
other clerical errors, discrepancies between an abstract and the actual judgment as
orally pronounced are subject to correction at any time, and should be corrected by
a reviewing court when detected on appeal. [Citation.]”].) The determinate
abstract incorrectly calculates the total sentence as 12 years, rather than five years.
The determinate abstract also erroneously fails to indicate that the five-year gang
enhancement on count 3, shooting at an occupied vehicle, was stayed. The
indeterminate abstract incorrectly indicates a 10-year sentence on the firearm
enhancement on count 1, rather than the 20-year firearm enhancement the trial
court imposed.
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DISPOSITION
The judgment is reversed with respect to count 6 and the trial court is
directed to dismiss that count. The sentence is vacated in part and the matter
remanded for the trial court to clarify whether the sentence imposed on count 5 is
to run concurrent to or consecutive with the indeterminate term. We direct the
clerk of the superior court to amend the determinate abstract of judgment to reflect
that the total sentence is five years, not 12 years, and that the five-year gang
enhancement on count 3 is stayed. In addition, the clerk is directed to amend the
indeterminate abstract of judgment to reflect that the court imposed a 20-year
firearm enhancement on count 1, not a 10-year term. The trial court is directed to
forward the amended abstracts of judgment to the Department of Corrections and
Rehabilitation. As so modified, the judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
MANELLA, J. COLLINS, J.
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