Opinion
F074197
07-19-2018
THE PEOPLE, Plaintiff and Respondent, v. LORENZO CERVANTES, Defendant and Appellant.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Rachelle Newcomb, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF162884B)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge. William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Rachelle Newcomb, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
A jury convicted appellant Lorenzo Cervantes of conspiracy to transport for sale between non-contiguous counties, transport for sale, and/or possess for sale a substance containing methamphetamine (Pen. Code, § 182, subd. (a)(1) & Health & Saf. Code, §§ 11378 & 11379, subds. (a) & (b); count 1), transportation for sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 2) and possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 3). The jury also found true a weight enhancement in each count (Health & Saf. Code, § 11370.4, subd. (b)(1)).
On August 3, 2016, the court sentenced Cervantes to an aggregate, six-year local term, the low term of three years on count 1, a three-year weight enhancement in that count, and stayed terms on the remaining counts and enhancements.
On appeal, Cervantes contends: (1) the trial court denied him his constitutional right of cross-examination; (2) he was denied the effective assistance of counsel; and (3) the trial court should have excluded his postarrest statements pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Cervantes also asks this court to review the sealed transcript of the in camera hearing the court held with respect to his Pitchess motion. Having conducted the requested review, we affirm.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
FACTS
The Prosecution Case
On January 13, 2016, at approximately 9:00 a.m., California Highway Patrol Officer Cory Dawson stopped a Ford pickup truck driven by Efrain Barajas for speeding. Jose Reyes was seated in the front passenger seat and Cervantes in the middle of the rear seat. As he moved around in his seat and reached down to the floorboard, Cervantes appeared very nervous and stared at Dawson, without blinking.
The stop occurred in Kern County.
Dawson approached the truck and noticed the interior smelled like motor oil, which is often used to disguise the odor of methamphetamine. He determined that Barajas's driver's license was expired, and ordered the men out so he could conduct an inventory search of the truck before towing it. Reyes took a small duffle bag from the rear seat.
During the search, in the truck's console Dawson found five packages that together contained approximately 500 grams of methamphetamine. Under a matt behind the driver's seats, he found a bag that contained approximately 300 grams of methamphetamine. On the floorboard behind the front passenger's seat, Kern County Sheriff's Deputy Gabriel Romo found a black bag that contained five bags of methamphetamine, two scales, cell phones, and an energy drink can with a false compartment that contained methamphetamine in small Ziploc bags. Inside Reyes's duffle bag, the officers found marijuana, a small electronic scale, and a small hand torch. The methamphetamine that was analyzed had a net weight of over 1,489.3 grams. Romo testified as an expert that the methamphetamine found in the truck had a street value between $20,000 and $24,000. Romo and Dawson both testified as experts that the methamphetamine was possessed for sale.
Deputy Romo interviewed Cervantes at the central jail using Kern County Sheriff's Deputy Erik Loera as an interpreter. Cervantes appeared to understand Loera as Loera advised him in Spanish of his Miranda rights. Cervantes then told Romo that he had been sitting in the middle of the rear seat in the truck and that they were coming from Los Angeles and going to Avenal in Kings County. Cervantes also stated that he owned the truck and that he had purchased it in Los Angeles for $500. He admitted the black bag found in the back seat belonged to him. When Deputy Romo told him drugs were found in the bag, Cervantes replied, "If it's mine, oh well."
The Defense
Cervantes testified he met Barajas a year earlier at Barajas's store in Avenal. On January 12, 2016, at 9:00 p.m., Cervantes was at the store when Barajas showed Cervantes a picture on his cell phone of a truck and asked if Cervantes wanted to buy it for $500. Cervantes said he did and Barajas told him someone would be coming to pick them up in about two hours. Later that night, two men drove Cervantes, Barajas, and Reyes to Los Angeles to get the truck. Cervantes wanted to test drive the truck, but Barajas told him he could not until they got to Interstate 5. According to Cervantes, he never touched anything in the truck because the truck did not yet belong to him and he did not know what was in it. Cervantes realized they had been pulled over when an officer appeared at his window. He then became scared because he was drinking a beer and he placed it on the floorboard. Eventually, he got his jacket and got out of the truck. Cervantes claimed that he did not know drugs were found in the truck until he went to court. He denied that Romo told him there were drugs in the bag. Instead, according to Cervantes, Romo only asked him if the bag was his. Cervantes told Romo it was because Romo was very mad and he believed Romo would get angrier if Cervantes did not say it belonged to him. Cervantes admitted telling Romo the truck was his and that he was going to pay for it in payments.
DISCUSSION
The Motion to Exclude Cervantes's Postcustody Statements
Factual Background
On June 27, 2016, Cervantes moved in limine to exclude statements he made to Romo following his arrest, alleging they were obtained in violation of Miranda. On June 28, 2016, at a hearing on the motion, Loera testified that he helped Romo interview Cervantes and the other suspects by translating from English to Spanish and Spanish to English. He advised Cervantes of his Miranda rights by translating them from a card on which they were written in English. When the prosecutor asked Loera to read the Miranda rights in English off the card, the following colloquy occurred:
"[DEFENSE COUNSEL]: Your honor, I'm sorry to interrupt. I believe he's going to be, at some point, testifying. I'll be asking him questions about what he specifically said in Spanish. My understanding is that portion cannot be transcribed. I want to make sure it's—the audio is being recorded for the court's record.
"THE COURT: First of all, [prosecutor], is there any objection to [defense counsel]'s proposed line of questions?
"[PROSECUTOR]: I think that he may be questioned about his ability to speak Spanish. I don't think it can be tested by having him speak in Spanish and [having defense counsel] determine whether he's doing so accurately.
"THE COURT: [Defense counsel], I have never, either as a litigator or as a judge, had that situation. I think it's correct you can ask the witness about his ability to speak Spanish but you can't ask him to translate the Miranda warnings into Spanish.
"[DEFENSE COUNSEL]: Your Honor, I'm asking—I would be asking him to speak his understanding, his translation of those Miranda rights into the record so the record of his doing so would be preserved for appeal.
"THE COURT: Well, there's no way to preserve it for appeal because the court reporter can't transcribe Spanish. That's why you're not allowed to do that.
"[DEFENSE COUNSEL]: My request is to have the audio recorded and preserve it for the record.
"THE COURT: How are we going to do that, Counsel, audio record it? I don't have that capability. You haven't given the Court notice of that either. Again, I don't think that's the normal way this is done.
"[DEFENSE COUNSEL]: I was unaware the Court had no capability.
"THE COURT: Your request to do that line of questioning is not relevant. Your request to ask the witness to testify in Spanish is denied.
"[PROSECUTOR]: Go ahead and tell us in English, read to us in English what you were reading that day that you interpreted into Spanish.
"[LOERA]: You have the right to remain silent. Do you understand?
"Anything you say may be used against you in court. Do you understand?
"You have the right to the presence of an attorney before and during any questioning. Do you understand?
"If you cannot afford an attorney, one will be appointed to you free of charge before questioning if you want. Do you understand?
"[PROSECUTOR] Did you interpret that accurately into Spanish?
"[LOERA]: Yes, I did.
"[PROSECUTOR] Did you get [a] response to those questions?
"[LOERA]: Yes, I did.
"[PROSECUTOR]: Were they in the affirmative or negative?
"[LOERA]: In the affirmative.
"[PROSECUTOR]: Did you then accurately translate the questions that Deputy Romo was asking and the answers that this defendant gave?
"[LOERA]: Yes, I did." (Italics added.)
During cross-examination, Loera testified that he spoke Spanish daily with his parents, who spoke only Spanish, that he learned to speak Spanish in Mexico and attended school there until the third grade when he was nine, and that he took one or two Spanish classes in high school. However, he was not certified as an interpreter by the sheriff's department.
Following Loera's testimony, Romo testified regarding the contents of Cervantes's statements to him. The court then heard argument from counsel and denied the defense's motion to exclude Cervantes's statements to Romo. Analysis
A defendant has a constitutional right to cross-examine witnesses. (E.g. People v. Brown (2003) 31 Cal.4th 518, 538 [right to due process under the Fourteenth amendment includes the right to cross examine witnesses], United States v. Owens (1988) 484 U.S. 554, 557 [the Sixth Amendment's Confrontation clause guarantees the right of cross examination].) Cervantes contends his statements to Romo should have been excluded because the court denied him his constitutional right to cross-examine Loera regarding the exact Spanish words he used to translate the Miranda warnings into Spanish. Cervantes further contends the denial of this right prejudiced him because Cervantes's statement to Romo established that the drugs were transported through two noncontiguous counties and that Cervantes possessed the black bag that contained methamphetamine. We reject these contentions.
Cervantes forfeited this contention by his failure to object on constitutional grounds to the court limiting his cross-examination of Loera, or to otherwise raise this issue in the trial court. (People v. Riccardi (2012) 54 Cal.4th 758, 801.) Cervantes, however, contends he did not forfeit this contention because the court's statements that the court reporter could not transcribe testimony in Spanish and that it did not have the means to make an audio recording of Loera's testimony showed its hostility toward defense counsel eliciting testimony in Spanish from Loera. This, according to Cervantes, excused his failure to object to the court's ruling because an objection would have been futile.
The comments quoted above reflect the court's concern that it did not have a practical way to memorialize the actual Spanish words Loera used to advise Cervantes of his Miranda rights. Since they do not reflect, per se, the court's hostility toward making a record of these words as Cervantes suggests, they do not excuse defense counsel's failure to object on constitutional grounds to the court limiting his cross examination of Loera. In any case, even if this issue were properly before us, we would reject it.
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
Further, "the court may confine cross-examination within reasonable limits and may curtail cross-examination which relates to matters already covered or which are irrelevant. Only a manifest abuse of the court's discretion will warrant a reversal." (People v. Beach (1983) 147 Cal.App.3d 612, 628.)
Cervantes contends the trial court precluded defense counsel from any meaningful cross-examination on whether Loera properly advised him of his Miranda rights. However, defense counsel did not intend to cross-examine Loera to establish that Cervantes was not properly admonished about these rights or to attack Loera's credibility. Instead, according to defense counsel, he wanted to introduce Loera's Spanish "translation of those Miranda rights into the record so that the record of his doing so would be preserved on appeal." This clearly was an irrelevant purpose. Further, without a translation of the exact Spanish words Loera used to advise Cervantes of his Miranda rights, which defense counsel did not intend to introduce, the Spanish translation was also irrelevant on this basis. Thus, the court did not abuse its discretion when it barred defense counsel from cross-examining Loera regarding the exact Spanish words he used to advise Cervantes of his Miranda rights.
Cervantes cites People v. Gutierrez (1982) 137 Cal.App.3d 542 (Gutierrez) in support of his contention that the court erred by limiting his cross-examination of Loera. Gutierrez is inapposite because it did not involve an attempt by the defense to introduce evidence for an irrelevant purpose or evidence that was itself irrelevant. --------
Cervantes Has Not Shown He Was Denied the Effective Assistance of Counsel
Cervantes contends he was denied the effective assistance of counsel because there was no rational tactical purpose for counsel not to object on constitutional grounds to the court limiting his cross-examination of Loera. We reject this contention.
"The burden of proving ineffective assistance of counsel is on the defendant. [Citation.] To establish constitutionally inadequate representation, the defendant must show that (1) counsel's representation
was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's deficient representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel's failings the result would have been more favorable. [Citations.] When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation' [citation], the case is affirmed [citation]. In such cases, the ineffective-assistance claim is more appropriately made in a petition for habeas corpus." (People v. Babbitt (1988) 45 Cal.3d 660, 707.)
Defense counsel did not, as Cervantes contends, cross-examine Loera about his Spanish translation of the Miranda warnings in order to establish that the warning in Spanish was defective. Instead, as noted above, his purpose in eliciting from Loera the exact Spanish words he used to explain the Miranda warnings to Cervantes was simply to include them as part of the appellate record. However, based on counsel's representations, the court correctly determined that they were not relevant. Thus, counsel did not provide ineffective representation by failing to object to the court's ruling on constitutional grounds because this would not have undermined the court's ruling that the exact Spanish words used to admonish Cervantes of his Miranda rights were not relevant.
Further, it is unclear from the record why defense counsel did not attempt to show through cross-examination or through testimony from Cervantes that Loera's Spanish translation of the Miranda warnings was defective. He may have refrained from doing so because his discussions with Cervantes disclosed that no error occurred. In any case, since the record sheds no light on why defense counsel did not pursue this line of questioning, Cervantes's ineffective assistance of counsel claim is best raised in a petition for a writ of habeas corpus.
Cervantes Was Properly Advised of His Miranda Rights
Cervantes contends the court should have excluded his statement to Romo because the prosecution failed to prove that Loera's translation of the Miranda warnings was accurate. There is no merit to this contention.
"The high court has stated in summary that to counteract the coercive pressure inherent in custodial surroundings, 'Miranda announced that police officers must warn a suspect prior to questioning that he has a right to remain silent, and a right to the presence of an attorney. [Citation.] After the warnings are given, if the suspect indicates that he wishes to remain silent, the interrogation must cease. [Citation.] Similarly, if the suspect states that he wants an attorney, the interrogation must cease until an attorney is present. [Citation.] Critically, however, a suspect can waive these rights. [Citation.] To establish a valid waiver, the State must show that the waiver was knowing, intelligent, and voluntary under the "high standar[d] of proof for the waiver of constitutional rights [set forth in] Johnson v. Zerbst, 304 U.S. 458 ...." ' [Citation.]
" 'The prosecution bears the burden of demonstrating the validity of the defendant's waiver by a preponderance of the evidence.' [Citations.] In addition, '[a]lthough there is a threshold presumption against finding a waiver of Miranda rights [citation], ultimately the question becomes whether the Miranda waiver was [voluntary,] knowing [,] and intelligent under the totality of the circumstances surrounding the interrogation.' [Citation.] On appeal, we conduct an independent review of the trial court's legal determination and rely upon the trial court's findings on disputed facts if supported by substantial evidence." (People v. Williams (2010) 49 Cal.4th 405, 425.)
Deputy Loera was a native Spanish speaker who attended school in Mexico until the age of nine. He also spoke Spanish with his parents daily and he testified that he spoke it fluently. Loera further testified that he gave the Miranda warnings to Cervantes in Spanish by translating them from a card on which they were written in English, and that he interpreted the warnings, Romo's questions, and Cervantes's answers accurately. Additionally, after translating each warning, he asked Cervantes if he understood and each time Cervantes stated that he did. The defense did not present any evidence that Cervantes did not understand the warnings. Thus, the record establishes that Loera accurately translated the Miranda warnings for Cervantes.
Cervantes cites People v. Diaz (1983) 140 Cal.App.3d 813 (Diaz), United States v. Botello-Rosales (2013) 728 F.3d 865 (Botello-Rosales), and United States v. Perez-Lopez (2003) 348 F.3d 839 (Perez-Lopez) in support of his contention that Loera's translation of the Miranda warnings was inadequate. In Diaz, the defendant was read his Miranda rights in Spanish from a card that contained a Spanish translation of these rights that used the word "conseguir." (Id. at pp. 818, 822.) The court found that the Spanish word "conseguir," which meant " 'to get' or 'to acquire,' " did not properly explain to the defendant that he had a right to appointed counsel if he could not afford to retain counsel. (Diaz, supra, 140 Cal.App.3d at p. 822.) In Botello-Rosales, the court found that the interpreter's use of the Spanish word "libre" to mean "without cost" was not a correct translation because "libre" translated to "free," as in being available or at liberty to do something." (Botello-Rosales, supra, 728 F.3d at p. 867.) Further, "the phrasing of the warning—that a lawyer who is free could be appointed—suggest[ed] that the right to appointed counsel [was] contingent on the approval of a request or on the lawyer's availability, rather than the government's absolute obligation." (Ibid.) In Perez-Lopez, the interpreter told the defendant in Spanish that he had "the right to solicit the court for an attorney if [he had] no funds." (Perez-Lopez, supra, 348 F.3d at p. 847.) On appeal, the court found that the warning was "constitutionally infirm because it did not convey to [the defendant] the government's obligation to appoint an attorney for indigent accused" because it implied "the possibility of rejection." (Id. at p. 848.) These cases are inapposite because in each case an issue was raised regarding one of the words that was translated, whereas here, defense counsel did not raise an issue regarding any of the words Loera used to translate the Miranda warnings. Thus, the record establishes that Cervantes's waiver of his Miranda rights was voluntary, knowing, and intelligent and that the court did not err when it admitted Cervantes's statements to Deputy Romo..
The Pitchess Review
Introduction
On May 12, 2016, Cervantes moved, pursuant to Pitchess, supra, 11 Cal.3d 531, for discovery of personnel records, investigative documents, and other documents that contained evidence of: "(1) false statements in reports, (2) fabrication of witness testimony in reports, (3) false testimony, (4) falsification of probable cause and/or reasonable suspicion, (5) acts involving moral turpitude, and (6) any other evidence of or complaints of dishonesty regarding Deputy Gabriel Romo ... and Deputy E. Loera ...[.]"
On June 8, 2016, the court granted Cervantes's request for an in camera review of these records and determined that they did not contain any discoverable records.
On October 16, 2017, this court ordered the trial court to prepare and transmit certified copies of the written record of the in camera hearing conducted on June 8, 2016, and the files that were reviewed during that hearing. On December 6, 2017, the superior court complied with this order.
Analysis
Cervantes asks this court to independently review "the sealed in camera proceedings to determine whether the trial court properly exercised its discretion."
The statutory scheme for Pitchess motions is contained in Evidence Code sections 1043 through 1047 and Penal Code sections 832.5, 832.7 and 832.8. When a defendant seeks discovery from a peace officer's personnel records, he or she must file a written motion that satisfies certain prerequisites and makes a preliminary showing of good cause. If the trial court determines that good cause has been established, the custodian of records brings to court all documents that are " 'potentially relevant' to the defendant's motion." (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) The trial court examines these documents in camera and, subject to certain limitations, discloses to the defendant " 'such information [that] is relevant to the subject matter involved in the pending litigation.' " (Ibid.) The ruling on a Pitchess motion is reviewed for an abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330 (Hughes).) The record in this case is adequate to permit meaningful appellate review. It contains a full transcript of the June 8, 2016, in camera Pitchess proceeding and a certified copy of the records that were actually examined by the trial court. (People v. Prince (2007) 40 Cal.4th 1179, 1285 (Prince); Hughes, supra, 27 Cal.4th at p. 330.)
Having independently reviewed the transcript of the Pitchess proceeding and the records examined by the trial court and submitted under seal, we conclude that the trial court did not abuse its discretion in determining that none of the records were relevant to the issues presented in this case. Accordingly, we uphold the ruling on the Pitchess motion. (Prince, supra, 40 Cal.4th at p. 1286; Hughes, supra, 27 Cal.4th at p. 330.
DISPOSITION
The judgment is affirmed.