Opinion
F071317
07-25-2017
THE PEOPLE, Plaintiff and Respondent, v. LLOYD DAVISON, Defendant and Appellant.
R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Gregory B. Wagner, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DF011639A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Robert S. Tafoya, Judge. R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A sharpened screw with a handle and a sheath was found in defendant Lloyd Davison's two-man prison cell. Following a trial by jury, defendant was convicted of being a prisoner in possession of a weapon, in violation of Penal Code section 4502, subdivision (a). In a subsequent bifurcated proceeding, the trial court found true that defendant suffered a prior conviction for a serious and/or violent felony within the meaning of the Three Strikes law and he served three prior prison terms. (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e), 667.5, subd. (b).)
All further references are to the Penal Code unless otherwise specified.
The trial court sentenced defendant to a total determinate prison term of 11 years. Defendant received the upper term of four years for violation of section 4502, doubled for the strike, and an additional one-year term for each of the three prior prison term enhancements.
On appeal, defendant advances three claims. First, he argues the trial court erred in permitting Correctional Officer Miguel Cortez to testify, as a lay witness, that the screw was a weapon. He also argues because Cortez's testimony qualified as expert testimony, the trial court erred in failing to instruct the jury sua sponte on evaluating expert testimony. Finally, he requests we conduct an independent review of the trial court's determination that Cortez's and Correctional Officer Sergio Castrejon's personnel files contain no discoverable information. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).)
The People do not object to an independent review of the trial court's resolution of defendant's Pitchess motion, but they dispute the trial court erred in admitting Cortez's lay testimony regarding the screw or in failing to instruct the jury on expert testimony.
We conclude the trial court did not abuse its discretion in permitting Cortez to offer his lay opinion that the sharpened screw was a weapon and, therefore, we do not reach defendant's instructional error claim. Following independent review of the Pitchess motion proceedings and the personnel files, we also conclude the trial court followed the proper procedures and did not withhold any discoverable information. Accordingly, the judgment is affirmed.
SUMMARY OF FACTS
On February 4, 2014, staff at North Kern State Prison in Kern County was conducting a building-wide search of inmates' cells. Defendant was alone in his cell and asleep on the upper bunk when Cortez and Castrejon approached. Castrejon ordered defendant to get off the bunk and exit the cell walking backward. Defendant was instructed not to reach for anything.
Defendant complied and got off his bunk but, as he reached the end of the bunk while walking backward, he reached up and pulled his blanket down. Defendant was ordered to drop the blanket and, as he did so, an object fell out and landed on the floor. The object was approximately five and one-half inches long, and was comprised of a three-inch screw sharpened to a point and a handle made from electrical tape. A sheath made from a sock covered the handle portion, leaving the sharpened screw exposed.
DISCUSSION
I. Admission of Cortez's Lay Opinion that Screw was a Weapon
Defendant argues the trial court abused its discretion in permitting Cortez to testify that the object found was a weapon. Defendant contends Cortez was a lay witness but he testified as an expert, his testimony was impermissibly based on his experience and training rather than his own perception, and his testimony constituted a legal conclusion concerning an element the prosecutor was required to prove. Defendant contends the error was prejudicial and he is entitled to reversal of his conviction.
The People respond that Cortez testified based on his personal knowledge of the screw and on his experience as a correctional officer, which courts have permitted. In addition, they contend any error in admitting the testimony was harmless given defendant's admission the screw was capable of causing great bodily injury.
A. Standard of Review
We review a trial court's ruling on the admission or exclusion of evidence for abuse of discretion. (People v. Sanchez (2016) 63 Cal.4th 411, 456; People v. DeHoyos (2013) 57 Cal.4th 79, 131 (DeHoyas).) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)
B. Forfeiture
As an initial matter, the People argue defendant forfeited his claim by failing to renew his objection to Cortez's testimony. The People do not explain why defendant was required to renew an objection the trial court expressly overruled in part and sustained in part. The People cite to People v. Danielson (1992) 3 Cal.4th 691, 729, overruled in part on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, footnote 13, but in that case the trial court neglected to rule on the defendant's objection to the admissibility of a witness's testimony. Given the absence of a ruling on the objection, the California Supreme Court found the defendant's failure to request a ruling or renew the objection forfeited the claim on appeal. (People v. Danielson, supra, at p. 729.) Here, the trial court ruled on the objections made.
Defense counsel objected that Cortez's testimony misstated his earlier testimony, constituted a legal conclusion and lacked foundation.
It is within our discretion to address forfeited claims in any event. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 92.) Assuming defendant did not forfeit his claim in this instance, however, it nevertheless fails on its merits.
C. No Error in Admission of Testimony
Pursuant to Evidence Code sections 702 and 800, a lay witness must have personal knowledge of the matter on which he is testifying, and opinion testimony is limited to that which is rationally based on the witness's perception and is helpful to a clear understanding of the testimony. (DeHoyos, supra, 57 Cal.4th at p. 130.) In contrast, "[m]atters that go beyond common experience and require particular scientific knowledge may not properly be the subject of lay opinion testimony." (Id. at p. 131.) A witness qualified as an expert is required in those instances. (Evid. Code, § 801; DeHoyos, supra, at p. 131.)
During trial, defense counsel objected in relevant part to Cortez's characterization of the sharpened screw as a weapon on grounds of legal conclusion and lack of foundation. The trial court sustained the objection for lack of foundation and directed the prosecutor to lay one. Cortez then testified that over the past nine years, he had seen more than 100 inmate-manufactured weapons and that, based on his training and experience, the object was not a normal screw but a weapon. He also testified the screw was sharpened to a point for puncturing, had a handle for gripping, and had a sheath to conceal it and prevent self-injury.
We are unpersuaded by defendant's position that this testimony exceeded the scope of common experience and necessarily relied on specialized experience and training. While Cortez testified he had years of experience with inmate-manufactured weapons, he also visually inspected the object on the cell floor and was, therefore, testifying based on his personal knowledge of the sharpened screw. Moreover, the weapon defendant was accused of possessing was defined by the jury instruction as a sharpened instrument, and we reject the contention that opining a sharpened screw with a handle and sheath is a weapon, or sharpened instrument as defined, exceeds the scope of common experience and requires specialized knowledge or skill.
Courts have previously permitted similar testimony, as the People point out. In People v. Farnam (2002) 28 Cal.4th 107, 153-154, the California Supreme Court concluded a correctional sergeant's testimony that an inmate adopted a fighting stance was within the scope of common experience and the court took into account the sergeant's 15 years of experience with security at the prison's hospital.
In People v. Williams (1992) 3 Cal.App.4th 1326, 1332, this court noted that "[l]ay witnesses have been permitted to give an opinion of another's state of intoxication when based on the witness's personal observations of such commonly recognizable signs as an odor of alcohol, slurring of speech, unsteadiness, and the like." However, we concluded testimony interpreting horizontal gaze nystagmus (HGN) test results relied on special experience that exceeded the scope of common experience and was not, therefore, a proper lay opinion. (Id. at pp. 1333-1334.)
Similarly, offering an opinion that a vest seized during a search was a bulletproof vest was found to be outside the scope of common experience and was impermissible lay testimony. (People v. Chapple (2006) 138 Cal.App.4th 540, 547-548.) Unlike HGN test results or body armor, identification of the sharpened screw as a weapon did not require any specialized skill or training. To the contrary, with its sharpened point, handle and sheath, modification of the screw into a weapon was so obvious that its identification as such was well within the scope of common experience.
Defendant likens Cortez's testimony to that of Agent Smith in United States v. Johnson (2010) 617 F.3d 286 (Johnson). In Johnson, the Fourth Circuit found the district court abused its discretion in admitting Smith's lay testimony concerning intercepted phone calls. As the appellate court explained, "[T]he government elicited testimony on Smith's credentials and training, not his observations from the surveillance employed in this case. Furthermore, Agent Smith admitted that he did not participate in the surveillance during the investigation ...." (Id. at p. 293.)
Johnson is distinguishable in several respects. First, unlike Agent Smith, Cortez was personally involved in the cell search at issue and he saw the sharpened screw that was the subject of his testimony. Additionally, Johnson was a drug conspiracy case and Smith interpreted certain phrases in the intercepted phone conversations. As the meanings were not readily apparent from the conversations themselves, their interpretation necessarily relied on specialized knowledge of street terms acquired through training and experience. We do not agree that in evaluating the bounds of common experience, interpreting coded street language in phone calls purporting to arrange drug deals is akin to identifying a common object fashioned into a basic stabbing or puncturing device.
Accordingly, we find it was not an abuse of discretion to admit Cortez's testimony in his capacity as a lay witness. In light of this conclusion, defendant's instructional error claim is moot and we do not reach it.
D. No Prejudice
Although we find no error in the admission of Cortez's testimony, we find no prejudice as well. "Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (People v. Partida (2005) 37 Cal.4th 428, 439; accord, People v. Lucas (2014) 60 Cal.4th 153, 263, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19.)
People v. Watson (1956) 46 Cal.2d 818, 836.
The prosecution was required to prove defendant possessed a weapon in the form of a sharpened instrument, as defendant asserts. However, as previously discussed, the screw was modified in a very distinctive manner: the end was sharpened to a point and it had an electrical tape handle and a sock sheath. That it was a sharpened instrument was obvious.
The trial court instructed the jury pursuant to CALCRIM No. 2745 as follows:
"The defendant is charged in Count 1 with possessing a weapon, specifically a sharpen[ed] instrument while in a penal institution in violation of Penal Code Section 4502. To prove the defendant is guilty of this crime, the People must prove:
"One, the defendant was present at or confined in a penal institution;
"Two, the defendant possessed or carried on his person or had under his custody or control a sharpened instrument;
"Three, the defendant knew that he possessed or carried on his person or had under his custody or control a sharpened instrument;
"And four, the defendant knew that the sharpened instrument could be used as a stabbing weapon or for purposes of offense or defense.
"A penal institution is a state prison.
"The People do not have to prove that the defendant used or intended to use the object as weapon.
"You may consider evidence that the object could be used in a harmless way in deciding if the object—in deciding if the object is a weapon.
"A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it."
Moreover, defendant testified in his own defense and admitted the sharpened screw was "a dangerous weapon that would be capable of doing great bodily injury to a person." Castrejon also testified regarding inmate-manufactured weapons and opined that based on the material, length, point, and handle, the screw was a dangerous weapon.
Defendant does not challenge Castrejon's testimony on appeal.
Additionally, the main issue at trial was whether the sharpened screw was in defendant's possession rather than whether the object was a weapon or sharpened instrument. Although defendant argues this was a close case, we disagree the record supports his interpretation that the jury was struggling with whether the object was a weapon. To the contrary, the jury requested readback of Cortez's and Castrejon's testimony, reports by two investigators and "the legal definition of possession." This more reasonably suggests that, consistent with the parties' arguments at trial, any struggle the jury had was over whether the prosecutor had proved defendant possessed the sharpened screw.
Defendant denied any knowledge of the object and testified that as soon as he got off the upper bunk as instructed, Cortez and Castrejon immediately "snatched" him out of the cell. He testified he learned about the weapon after he was removed from his cell and placed in a holding cell.
Defendant's cellmate was at breakfast during the cell search. The defense investigator testified at trial that he told her the screw belonged to him and defendant was not aware of its presence in the cell.
In sum, given the distinctive appearance of the sharpened screw and the testimony of defendant and Castrejon, we find no prejudice in the admission of Cortez's testimony that the screw was a weapon, even if we were to assume error. II. Independent Review of Pitchess Proceedings
Finally, defendant requests we conduct an independent review of the Pitchess proceedings to ensure that the trial court complied with the procedural requirements set forth in People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229 (Mooc), and that it did not abuse its discretion in refusing to disclose any information from Cortez's and Castrejon's personnel files. The People do not oppose the request.
The procedure for obtaining discoverable information from law enforcement personnel files is well established. Pursuant to Evidence Code section 1043, subdivision (b), "on a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both '"materiality" to the subject matter of the pending litigation and a "reasonable belief" that the agency has the type of information sought.' [Citation.] A showing of good cause is measured by 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents.' [Citation.] If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], 'the trial court should then disclose to the defendant "such information [that] is relevant to the subject matter involved in the pending litigation."'" (People v. Gaines (2009) 46 Cal.4th 172, 179.)
On appeal, a defendant may request we conduct an independent review of the proceedings and the trial court's determination regarding the presence or absence of discoverable information. (People v. Townsel (2016) 63 Cal.4th 25, 67-68; People v. Yearwood (2013) 213 Cal.App.4th 161, 179-180.) "A trial court is afforded wide discretion in ruling on a motion for access to law enforcement personnel records. The decision will be reversed only on a showing of abuse of discretion." (People v. Yearwood, supra, at p. 180, citing People v. Hughes (2002) 27 Cal.4th 287, 330.)
The trial court ruled defendant was entitled to discovery of information pertaining to Cortez and Castrejon writing false reports and, it appears, their general credibility. We have conducted an independent review both of the in camera proceedings and of Cortez's and Castrejon's sealed personnel files. We find the trial court complied with the proper procedural requirements set forth in Mooc, supra, 26 Cal.4th at pages 1228-1230, and our review of the files reveals no relevant documents or information. The court did not abuse its discretion, therefore, in declining to disclose any information from the files.
The process is effectuated by having a custodian of records collect all potentially relevant documents from identified personnel files and present them to the trial court. The custodian "should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant's Pitchess motion." (Mooc, supra, 26 Cal.4th at p. 1229.)
The trial court must then make a record of what documents it has examined to permit future appellate review. (Mooc, supra, 26 Cal.4th at p. 1229.) "If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined." (Ibid.) These proceedings are then sealed. (Ibid.)
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
PEÑA, J.