Opinion
C088799
04-23-2020
THE PEOPLE, Plaintiff and Respondent, v. GARY WAYNE ERVIN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18FE004023)
A jury found defendant Gary Wayne Ervin guilty of committing an assault with a deadly weapon (truck) and the trial court placed him on formal probation for five years. On appeal, defendant contends we must reverse his conviction because (he alleges) eyewitness Roger Johnson fabricated his testimony with the prosecution's acquiescence, in violation of defendant's federal constitutional rights to due process and a fair trial. Disagreeing, we affirm, but direct correction of the order of probation to accurately reflect the sentence imposed.
BACKGROUND
Testimony at trial
On the afternoon of December 12, 2017, defendant drove his red Dodge Ram truck into Lakeview Village, a closed community. He was not a resident of the community, and was going through trash piles that were in front of residences for a semi-annual city bulk waste pick up.
An employee of the company that owned and managed the community made an unsuccessful first attempt to confront and stop defendant. A few moments later, the employee confronted defendant on the street in front of a house. The employee, who was in his maintenance uniform shirt, told defendant he was trespassing and had to leave. Defendant "started yelling" and the employee responded, "you're acting crazy." Defendant replied: "[T]hat's right, I am fucking crazy. I'm 74 years old and I love it."
As a "heated argument" developed between defendant and the employee, two other people approached: a second employee, and a Lakeview Village resident. Defendant "remained belligerent," so the resident suggested calling the police.
As the resident began searching his phone for a nonemergency police number, defendant got into his truck. Because it appeared that defendant was about to leave, the resident tried to take a photo of the truck and license plate, stepping aside for the truck so defendant could leave. But defendant accelerated from about 20 feet away and drove directly at the resident, hitting him with the truck. The resident (victim) and both employees testified at trial to this sequence of events.
Witness Roger Johnson and Defendant's Initial Accusations of Perjury
The prosecution called a fourth eyewitness to testify at trial: Lakeview Village resident Roger Johnson. Johnson testified that he parked his vehicle near the initial altercation and then saw defendant's truck hit the victim. When Johnson went to aid the victim, the two employees yelled to him to "go get" defendant, who was driving away. Doing so, he saw the truck leave Lakeview Village, ignoring a stop sign and exceeding the speed limit.
On cross-examination, defendant (representing himself) pressed Johnson on his claim that he was near the incident and saw everything he had described, going over detail after detail and challenging some of the observations to which Johnson testified. Johnson answered all of the questions but was not asked about anything beyond his actual observations of the incident. Defendant did not bring up any prior statements made by Johnson to the police or to anyone else, nor did he bring up any delay in Johnson's reporting that he witnessed the incident.
A detective in the Citrus Heights Police Department testified that he responded to the scene about six minutes after the incident was reported. On cross-examination, the detective noted that he did not talk to Johnson at the scene, and that Johnson was not listed as a witness in his report.
The next day, defendant complained to the court that he suspected Johnson had perjured himself the day before, referencing the fact that Johnson had "called into the D.A. in July, eight months after the matter" and adding that defendant had Johnson's "narrative and then his recording and a transcript of his recording and his testimony from yesterday." Defendant added that Johnson had "changed half his story from what he had told the D.A. before"; the court reminded defendant that he "had a full opportunity to cross-examine him about that."
Defendant later called as his witness a second officer, who had been the first officer to the scene, but did not ask him any questions about Johnson.
Verdict, Postverdict Motions, & Sentencing
The jury found defendant guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). Defendant, still pro per, filed a postverdict pleading entitled "Request to Consider Setting Aside Verdict of Guilty and Dismiss All Charges Against the Defendant," invoking section 1385, subdivision (a). In that pleading, defendant argued that Johnson was a "100% perjurer."
Further undesignated statutory references are to the Penal Code.
In support of his pleading, defendant attached what he represented was a "July 17, 2018 . . . statement to District Attorney" by Johnson; it appears to be a transcript with an attached certification reflecting a July 17, 2018, telephone conversation between Johnson and an investigator in the district attorney's office. As we have described above, defendant did not cross-examine Johnson at trial regarding that telephone conversation, or any prior reports, and the transcript was not introduced or relied upon at trial. The transcript reflects that Johnson told the investigator that, after he saw the assault and went after defendant's truck in a manner consistent with his later trial testimony, he had approached two police officers who had pulled someone over in front of a coffee shop that was close to a 7-Eleven nearby, and told them briefly about the assault. Defendant argued in his pleading that the officers to whom Johnson said he spoke on the day of the incident "don't exist," and that "[n]o other witness made any reference to [Johnson] or his pretended presence at the alleged incident."
The trial court denied defendant's motion to dismiss, explaining: "[Y]ou have stated throughout the motion, just as you testified at trial, everybody is lying, it's all made up, you did nothing wrong. . . . [N]one of those are persuasive to me in any way which suggests that in the interest of justice I should dismiss this case." The court later added: "Throughout the trial you claimed that the many witnesses against you were liars, cheaters, conspirators to do evil to you. [¶] None of those things were true. I heard from at least four independent witnesses, none of whom have any reason to create a story. Their versions were consistent. [¶] The man who drove up and just happened to be there and saw the whole thing happen was absolutely credible. No reason to create a story." This last reference was to Johnson's testimony.
The trial court sentenced defendant to 300 days in county jail and placed defendant on five years of formal probation. Regarding costs, the court implicitly referenced the probation report and imposed "a minimum fine of $300. Any other mandatory fines are imposed, but all discretionary fines are stricken."
Defendant timely appealed.
DISCUSSION
I
Fabrication Claim
Defendant's sole contention on appeal is that "Key Witness Roger Johnson Fabricated His Testimony, with the Prosecutor's Apparent Knowledge and Acquiescence, that He Observed [defendant] Striking [the victim] with His Truck, Even Though Johnson Obviously Was Not Present at the Scene and Did Not Come Forward for Seven Months, Thereby Violating Ervin's Federal Constitutional Rights to Due Process of Law and a Fair Trial." In support of this assertion, he argues that despite Johnson's (transcribed) claim to have spoken to two officers about the incident, "no police officers" remembered anything about Johnson and his name was not in any reports. Defendant argues the prosecutor knew about the alleged fabrication because of the contents of the transcript we have described and also because the prosecutor did not ask Johnson about speaking to the police at trial and did not ask the three additional eyewitnesses whether they had seen Johnson at the scene.
This argument is purely speculative and borders on frivolous.
We would be within our discretion to deem the claim forfeited due to the lack of a specific objection at trial. (See People v. Charles (2015) 61 Cal.4th 308, 328 [claim of prosecutorial misconduct/presentation of false evidence was "forfeited because defendant failed to make this objection to the [evidence] in the trial court"]; People v. Carrasco (2014) 59 Cal.4th 924, 966-967 [defendant's claim the prosecutor elicited false and misleading testimony and failed to correct that testimony, was forfeited by defendant's failure to object to the witness's testimony or" to challenge the allegedly incorrect testimony on cross-examination].) Because the Attorney General does not raise forfeiture, and defendant represented himself at trial and did at one point seek to "complain about . . . Johnson," as described above, we will reach the merits. --------
" 'Under well-established principles of due process, the prosecution cannot present evidence it knows is false and must correct any falsity of which it is aware in the evidence it presents.' " When "the prosecution has doubts as to the truth of a statement it intends to present at trial, it must disclose to the defense any material evidence suggesting that the statement in question is false. But, notwithstanding those doubts, the prosecutor may still present the statement to the jury." (People v. Harrison (2005) 35 Cal. 4th 208, 242.)
The parties agree that on direct appeal defendant must demonstrate by a preponderance of the evidence that Johnson's testimony was untrue and that the prosecution knew of its falsity. It appears they also agree that, if defendant were to make such a showing, he would be entitled to automatic reversal of his conviction, without a prejudice inquiry.
Assuming the record before us is adequate to adjudicate defendant's claim, the claim fails. (See People v. Valdez (2004) 32 Cal.4th 73, 126 [rejecting a similar claim supported by evidence that had not been introduced or relied upon at trial, even though it was in the appellate record].) To the extent that Johnson's account of the incident was offered to the district attorney's office seven months after the incident, this is clearly not proof of falsity. To the extent that Johnson's testimony omitted any interaction with police immediately after the incident such as that that was described in the transcript, that is not proof the testimony was false. (See People v. Vines (2011) 51 Cal.4th 830, 874 [rejecting defendant's "inescapable conclusion" that a witness lied, because "[m]ere inconsistencies between a witness's testimony and her prior statements do not prove the falsity of the testimony"]; In re Roberts (2003) 29 Cal.4th 726, 743 [though a witness's inconsistent statements lessened his credibility, it was not clear that it was the witness's trial testimony that was false, rather than his other statement].)
Further, as we have described, defendant had ample opportunity on cross-examination to ask Johnson about the timeliness of his reporting of the incident, as well as any omissions or deviations from the July 2018 statement. He chose not to do so. He also had the opportunity to ask the other witnesses (beyond the one detective who was asked) whether they saw Johnson at the scene. This opportunity was not unique to the prosecutor; defendant offers no authority to support the notion that the prosecutor was somehow required to ask some witnesses whether others were present, let alone that the prosecutor's failure to do so is somehow evidence of knowledge of falsity. Defendant does not contend that the prosecutor failed to disclose any material evidence such that it was unavailable to him for cross-examination. As we have described, the information was available for use and defendant clearly knew about it, but he chose not to inquire. He now cites the prosecutor's failure to ask certain questions as evidence of knowledge of fabrication. His arguments are based on pure speculation and fail to persuade.
Accordingly, we reject defendant's claim.
II
Probation Order Corrections
We note that the order of probation does not correspond with the trial court's oral orders in all respects. For example, the trial court did not order or incorporate by reference urinalysis or the corresponding $25 fee. The order of probation nonetheless directs defendant to pay a $25 urinalysis testing fee; that fee order should be stricken. Also, although the order of probation correctly reflects that the mandatory fee of $40 (§ 1465.8, subd. (a)(1)) is not a condition of probation, the same is true for the mandatory $30 fee (Gov. Code, § 70373) and the order of probation should so reflect (see People v. Kim (2011) 193 Cal.App.4th 836).
Further, because the trial court waived all non-mandatory fees, the referral to the Department of Revenue and Recovery to determine ability to pay report and supervision costs is not appropriate. We direct correction of the order of probation to accurately reflect the trial court's pronouncement of sentence. (People v. Mitchell (2001) 26 Cal.4th 181, 185-188.)
DISPOSITION
The judgment is affirmed. The trial court is directed to issue a corrected order of probation as described by this opinion.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Hoch, J.