Opinion
D072508
12-07-2017
THE PEOPLE, Plaintiff and Respondent, v. CARLOS LOPEZ, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB804305) APPEAL from a judgment of the Superior Court of San Bernardino, Harold T. Wilson, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Carlos Lopez of murder (Pen. Code, § 187) and attempted murder (§§ 664, 187), for crimes which occurred in 2008. Lopez appealed his convictions to this court. In that appeal we ordered a conditional reversal with directions to the trial court to (1) direct the prosecution to request a search of the CalGang data base for possible exculpatory evidence concerning alleged gang membership of the two victims of Lopez's attack, (2) conduct an in-camera hearing to examine any records from the data base regarding the victims and determine whether such material, if any, would be exculpatory evidence which should be disclosed, and (3) if the material is exculpatory it should be delivered to the defense, and if no exculpatory material is located then reinstate the judgment. (People v. Lopez (March 30, 2016, D069279) [nonpub. opn.].)
All further statutory references are to the Penal Code unless otherwise specified.
We have taken judicial notice of the records in D069279 at appellant's request. The facts of the underlying offenses are fully set forth in our prior opinion and need not be discussed in the current appeal. --------
On remand, the trial court ordered the prosecution to order a search of the data base for possible exculpatory evidence regarding the victims. The prosecution complied with the direction. In consultation with defense counsel the parties agreed to have the San Bernardino County Sheriff's Office conduct the search since it was not involved with the criminal case.
In May 2017, the court conducted an in-camera hearing with a deputy sheriff acting as the custodian of records for the data base. The hearing was transcribed and the court ordered the transcript sealed. The court, with the concurrence of the custodian did inform the parties that the search revealed no "hits" about either victim. Thereafter the court ordered the judgment reinstated. At the conclusion of the hearing, defense counsel asked for permission to cross-examine the custodian regarding the purging policy of the data base to explore the possibility information on the victims might have existed at some time in the past and had been purged due to the lapse of time. The court denied the request, reasoning this court had remanded the case with directions to conduct an in-camera review of the data available and did order separate examination of the data base system.
Lopez filed a timely notice of appeal.
Lopez and the People have asked this court to review the sealed record of the in-camera hearing, and we have done so. Lopez contends he should have been allowed to cross-examine the custodian and to explore the possibility that something might have existed in the system regarding the victims at some time in the past.
Our review of the sealed record has not identified any possible exculpatory evidence in the data base. We will find no error in the trial court's denial of counsel's request to conduct an exploratory examination regarding the purging policies of the data base system. Accordingly, we will affirm.
DISCUSSION
I
IN CAMERA HEARING
With the consent of both parties in this case, we have reviewed the sealed transcript of the trial court's examination of the custodian of records for the regional data base. Our examination confirms the trial court's statements to the parties after the hearing that there is literally nothing in the data base regarding the victims in this case or any possible gang membership by them. We remanded the case for review of the data base out of an abundance of caution. The defense in this case was misidentification. However, in the last trial there was mention that one of the victims associated with gang members in Pasadena and that he had family members who were gang members. The prosecution expert speculated the victims were associates of a gang and were "flying" the Blood gang colors at the time of the shooting. Other than tainting the victims with gang membership, there was little in the trial to explain how such possible membership might bear on Lopez's culpability. However, the parties at trial contested the issue and the possibility of gang affiliation gave defense counsel something to use that would perhaps affect the jury's perceptions of the events.
In our opinion we concluded that the principles of Brady v. Maryland (1963) 373 U.S. 83 (Brady), and Pennsylvania v. Ritchie (1987) 480 U.S. 39, presented a due process concern where the prosecution had not searched an available law enforcement data base that might contain exculpatory evidence. We therefore ordered a search of the data base to determine if there was any such material. The record establishes there is nothing in the data base relating to the crime victims, hence there was no "Brady" error in this case.
II
PROPOSED NEW DISCOVERY EFFORT
After the in-camera hearing was completed and no discoverable information found, defense counsel made an oral request to cross-examine the custodian on the purging policies of the data base to explore the possibility something might have been on the data base at or around the time of the offenses. The court denied the request because the scope of the remand from this court did not include conducting new and expanded discovery proceedings. The trial court was correct.
Our remand was motivated by the fact the prosecution had not requested a search of the data base. There had been a search of the records of the San Bernardino Police Department (the investigative agency) and the records of the San Bernardino Sheriff's Office. No records of gang activity by the victims had been identified. As we have noted, however, there was some testimony the victims may have associated with a Bloods related gang in Pasadena. Although this was not a self-defense case, there was apparently some tangential benefit to be found in the victims' possible gang affiliation, at least to "impact" the credibility of the surviving victim. Our remand was not to initiate new discovery proceedings and to newly investigate the procedures of the data base management. There was no such request in our appellate proceeding or formal motion in this case for such new discovery.
When a case is remanded to the trial court with specific directions, the trial court may act only within such jurisdictional limits. (People v. Lewis (2004) 33 Cal.4th 214, 228.) There was no request in our prior appellate review to permit the defense to embark on an exploratory effort into the management of the data base based on the speculation there might have been something about the victims at some time in the past. Our remand was limited to a search of the data base by the trial court and to either grant a new trial or to reinstate the judgment. The trial court properly followed our directions and Lopez was not denied due process in the way the trial court conducted the proceedings.
DISPOSITION
The judgment is affirmed
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. HALLER, J.