Opinion
B195600
2-21-2008
THE PEOPLE, Plaintiff and Respondent, v. DEMETRIC RAY MARTIN, Defendant and Appellant.
Lisa M. Bassis, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Demetric Ray Martin appeals from the judgment entered after a jury convicted him of two counts of forcibly resisting an executive officer (Pen. Code, § 69) and three counts of assault with a deadly weapon upon a peace officer (§ 245, subd. (c)) and found true a special allegation that, pursuant to section 12022.7, subdivision (a), during one of the charged assaults he personally inflicted great bodily injury upon the victim. Martin contends that the trial court erred by granting the Peoples motion to consolidate the charge arising from an incident on June 27, 2005, with other charges arising from an incident on October 17, 2005. He further maintains that the court violated his federal constitutional rights when it sentenced him to the upper term for the assault that caused great bodily injury. Martin also requests that we independently review the transcript of the trial courts in camera hearing on his Pitchess motion seeking discovery of evidence of misconduct by the various peace officers who were involved in the two incidents (Pitchess v. Superior Court (1974) 11 Cal.3d 531), and that we reverse and remand if the record shows that he was improperly denied discoverable documents.
All undesignated statutory references are to the Penal Code.
Finding no error, we affirm the judgment.
BACKGROUND
During 2005, Martin was incarcerated at the North County Correctional Facility. On the morning of June 27, 2005, he was at the correctional facilitys infirmary. When an officer tried to hand him a movement pass, Martin stared blankly and unresponsively. A deputy then ordered Martin to turn around, face the wall, and allow the deputy to search him. Martin did so, but refused to answer and spat on the "pill call" window when the deputy asked him what was wrong. When the deputy ordered Martin to put his hands behind his back, Martin did so, but clenched his hands into fists. When the deputy tried to handcuff him, Martin said, "Oh naw," tensed his arms, and began to spread them apart. The first deputy grabbed Martins left arm, and another grabbed his right. Martin tried to push himself away from the wall and brought his left arm up, striking the first deputy in the chest with his elbow. A third deputy sprayed Martin in the face with pepper spray. On the floor, Martin continued to resist and to ignore commands to obey orders.
On October 17, 2005, when Martin was still an inmate at the same facility, another inmate saw him in the hallway outside the infirmary, holding a broom and pretending to sweep with it. Martin went back and forth in front of the infirmary door three times. Then he lifted the broom over his shoulder like a baseball bat and entered the infirmary. In the infirmary, he struck Deputy Sheriff Doug Newman on the right temple with the broom so hard that the broom handle broke in half. Deputy Newman fell to his knees. The observing inmate helped pull the deputy to the back of the infirmary while Martin continued to swing the broken broomstick at other officers, hitting one on the wrist and another on the nose. Three deputies struggled to bring Martin to the floor. Other deputies came to their aid in handcuffing Martin. Deputy Newman suffered mild traumatic brain injury resulting in headaches, blurred vision, dizziness, memory problems, and other neurological problems, some of them likely permanent.
On December 13, 2005, the Los Angeles County District Attorney filed an information (case number PA051098) charging Martin with one count committed on June 27, 2005, of resisting an executive officer in violation of section 69. Two days later, the District Attorney filed a second information (case number PA051291) charging Martin with four counts committed on October 17, 2005: one count of resisting an executive officer in violation of section 69; two counts of assault with a deadly weapon in violation of section 245, subdivision (a)(1); and one count of battery on a police officer, in violation of section 243, subdivision (c)(2), and alleging that he inflicted great bodily injury in the commission of the battery. The latter information also specially alleged that Martin had suffered several serious or violent juvenile adjudications in 1989-1990 and a serious adult felony conviction (carjacking) in July 2002 in violation of sections 1170.12, subdivisions (a)-(d) and 667, subdivisions (a)(1) and (b)-(i).
In January 2006, the court heard Martins Pitchess motion for discovery of complaints of excessive force or fabrication concerning the peace officers involved in the June 27, 2005 and October 17, 2005 incidents. The court conducted an in camera review of the officers personnel files and ordered limited disclosure of one complaint as to one officer. On August 9, 2006, the trial court granted the Peoples motion to consolidate the two cases, finding that there was a common thread of assaultive conduct and resisting peace officers connecting the cases, that the charges in both cases were arguably of the same class (assault upon peace officers), and that Martin would not be prejudiced from consolidation because the evidence in the cases was cross-admissible on the issue of common plan or scheme. On September 22, 2006, the court granted the Peoples motion to amend the information by interlineation to add three counts of assault with a deadly weapon on a peace officer in violation of section 245, subdivision (c), with a special allegation of great bodily injury as to one count. A few days later, on the Peoples motion pursuant to section 1385, subdivision (a), the court dismissed the counts charging violations of sections 243, subdivision (c) and 245, subdivision (a).
At trial, jurors heard testimony from the deputy who was struck by Martins elbow in the June 27, 2005 incident and from various persons who witnessed the October 17, 2005 incident: Deputy Newman, the two other deputies who were struck with the broken broom handle, a third deputy and the onlooking inmate. The doctor who was treating Deputy Newman for neurological injuries also testified. Martin presented no evidence. He voluntarily waived jury trial of his prior convictions. After two hours of deliberations, the jury found Martin guilty of all charges and found true the allegation that he personally inflicted great bodily injury on Deputy Newman.
The trial court found Martins alleged prior convictions to be true. Martin moved for a new trial on the ground that the court had improperly consolidated the two cases. The court denied the motion and sentenced Martin to the upper term of five years for the assault on Deputy Newman, doubled to ten years under the Three Strikes law, plus an additional consecutive three years, pursuant to section 12022.7, subdivision (a), for inflicting great bodily injury on Deputy Newman. As to all other counts, the court sentenced Martin to a consecutive term of one-third the middle term, doubled under the three strikes law, plus five years pursuant to section 667, subdivision (a)(1), for a total sentence of 26 years in prison. The court awarded Martin 599 days of credit for actual custody and good time/work time credit and imposed various statutorily mandated fines and assessments. Martin timely appealed. (See § 1237, subd. (a).)
DISCUSSION
I. Consolidation of Counts
Martin contends that the trial court erred by granting the Peoples motion to consolidate the counts arising from the October 17, 2005 incident involving Deputy Newman with the count of resisting an executive officer arising from the June 27, 2005 incident. We disagree.
Section 954 provides that "`[a]n accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts. . . . [P]rovided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." (People v. Lucky (1988) 45 Cal.3d 259, 276.) Crimes are deemed to be of the same class if, for example, they "share common characteristics as assaultive crimes against the person. [Citations.]" (Ibid.) Moreover, offenses that are committed at different times and places against different victims are nevertheless connected together in their commission pursuant to section 954 if they are linked by a common element of substantial importance. (Ibid.) The law generally favors consolidation of charges because it avoids unnecessary delay, public expense, and harassment of defendants. (People v. Ochoa (1998) 19 Cal.4th 353, 409; People v. Hill (1995) 34 Cal.App.4th 727, 735.) A trial courts rulings on joinder are reviewed for abuse of discretion. (People v. Gray (2005) 37 Cal.4th 168, 221.)
Martin contends that joinder of the counts against him was improper under section 954. He argues that the common elements connecting the June 27, 2005 and October 17, 2005 incidents—assaultive conduct against peace officers at the same location (the infirmary) within the same correctional institution—are not of substantial importance. We disagree. That crimes are committed in the same place is an element of substantial importance. (See People v. Garcia (1985) 166 Cal.App.3d 1056, 1064.) That the targets of Martins aggression were police officers, not other inmates, is also a significant common element. That the incidents took place four months apart does not preclude consolidation. (People v. Shells (1971) 4 Cal.3d 626, 628, 631-632 [holding consolidation of charges proper even where separate incidents occurred almost six months apart].) Accordingly, we find that the trial court did not abuse its discretion in ruling that common elements in this case were of substantial importance and provided a sufficient connection between the counts to justify consolidation. The authorities Martin cites to support the opposite conclusion are inapposite and do not aid him. (See Walker v. Superior Court (1974) 37 Cal.App.3d 938, 941 [finding no common substantial element between dissimilar counts of armed robbery and illegal possession of a handgun where incidents occurred three months apart, there was no evidence that the handgun was used in the robbery, and evidence linking defendant to the robbery was tenuous]; People v. Gomez (1994) 24 Cal.App.4th 22, 25-29 [finding joinder appropriate and Walker inapplicable in a case involving charges similar to those in Walker in which the separate alleged crimes happened closer together in time and identity evidence was strong].)
Even if consolidation of counts is authorized under section 954, however, courts still "must always examine consolidation motions for their potentially prejudicial effect." (People v. Lucky, supra, 45 Cal.3d at p. 277.) "Prejudice may arise from consolidation where it allows the jury to hear inflammatory evidence of unrelated offenses which would not have been cross-admissible in separate trials." (Ibid.) If the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion by consolidating counts. (See People v. Mendoza (2000) 24 Cal.4th 130, 160.) In determining whether the trial court has abused its discretion, we consider the following factors: "(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. [Citation.]" (Id. at p. 161.) These factors are not all of equal weight: "Cross-admissibility is the crucial factor affecting prejudice. [Citation.]" (People v. Stitely (2005) 35 Cal.4th 514, 531.) "Where evidence would have been cross-admissible in separate trials, . . . `"any inference of prejudice is dispelled."" (People v. Gray, supra, 37 Cal.4th at p. 222, quoting People v. Memro (1995) 11 Cal.4th 786, 850.)
The trial court ruled that the evidence regarding the June 27, 2005 and October 17, 2005 incidents was cross-admissible to show common plan or scheme. Evidence of a common plan or scheme must show common features that show a relationship between otherwise separate and seemingly unrelated incidents. (See People v. Sullivan (2007) 151 Cal.App.4th 524, 558.) As we have discussed, the June 27, 2005 and October 17, 2005 incidents both occurred at the correctional facilitys infirmary and involved forceful and assaultive conduct against police officers. The incidents thus shared common marks that suggest a wider plan of attacking officers at the infirmary. Each incident is probative as to Martins intent regarding the other incident. We find no error in the trial courts ruling that the evidence was cross-admissible. Accordingly, Martin was not prejudiced by the consolidation, and the trial court did not abuse its discretion in granting the motion to consolidate. (See People v. Gray, supra, 37 Cal.4th at p. 222.)
In his opening brief, Martin attempts to sidestep the crucial factor of cross-admissibility by citing section 954.1 and certain authorities that interpret that statute and maintaining that "it is unnecessary to decide whether the [trial] court was correct" in its ruling on cross-admissibility. Section 954.1, however, only establishes that cross-admissibility is not a requirement for joinder but does not eliminate its central importance in determining prejudice. (See People v. Hill, supra, 34 Cal.App.4th at p. 735, fn. 2 ["[T]he absence of cross-admissibility does not, by itself, preclude joinder."].) In his reply brief, which we permitted Martin to file late, he challenges that the evidence was cross-admissible, citing very dated authorities that are fundamentally dissimilar to the facts of this case and do not aid him. (See People v. Kelley (1967) 66 Cal.2d 232, 244-245 [holding very remote evidence of prior uncharged sex crimes with adults up to 24 years earlier was inadmissible regarding defendants alleged molestation of his eight-year-old stepson]; People v. Cramer (1967) 67 Cal.2d 126 [holding evidence of sex crimes with minors cross-admissible where acts were similar and occurred within a few days of each other].)
Section 954.1 reads, in relevant part, "In cases . . . where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact."
II. Sentencing
Martin contends that the trial courts selection of the upper term sentence for assaulting Deputy Newman violates his federal constitutional rights under Cunningham v. California (2007) 549 U.S. ___ . We disagree.
In People v. Black (2007) 41 Cal.4th 799, our Supreme Court held that under Californias determinate sentencing law, "the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence" (id. at p. 815), that "the right to a jury trial does not apply to the fact of a prior conviction" (id. at p. 818), and that a determination whether a criminal defendants prior convictions are numerous or of increasing severity, an aggravating circumstance pursuant to California Rules of Court, rule 4.421 (b)(2), also does not require a jury finding. (Id. at pp. 819-820.) The same reasoning applies to juvenile adjudications. (People v. Tu (2007) __ Cal.App.4th __, __ [2007 DJDAR 13131, 13134].)
At sentencing, the trial court announced that it was selecting the upper term "utilizing circumstances in aggravation, [r]ule 4.421, and circumstances in mitigation, rule 4.423, both California Rules of Court." The minute order states that the trial court "read and considered the probation report" in determining that factors in aggravation outweighed factors in mitigation. The probation report, in turn, described Martins adult convictions and juvenile adjudications as numerous or of increasing seriousness, among several other aggravating factors, and identified no mitigating circumstances.
We must assume that the court, in considering the probation report, considered Martins prior convictions and juvenile adjudications, which are both numerous and of increasing seriousness. (See People v. Black, supra, 41 Cal.4th at p. 818.) The record thus establishes the presence of at least one aggravating circumstance that was not already structured into the sentence itself, unlike the jurys finding of great bodily injury and the trial courts finding of a prior serious and violent strike conviction. This aggravating circumstance required no jury finding and allowed the court lawfully to select the upper term for the assault on Deputy Newman. (See id. at p. 820.)
In explaining why no jury finding is necessary as to prior convictions and their numerousness or increasing seriousness, our Supreme Court reasoned that such determinations "require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is `quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court." (People v. Black, supra, 41 Cal.4th at pp. 819-820, quoting People v. McGee (2006) 38 Cal.4th 682, 706.)
III. In Camera Pitchess Hearing
Martin requests that we independently review the record of the in camera hearing on his Pitchess motion. A defendant is entitled to discovery of a police officers confidential personnel records that contain information relevant to his defense. (Pitchess, supra, 11 Cal.3d at pp. 537-538; Evid. Code, §§ 1043-1045.) If a defendant shows good cause for the discovery, the trial court must conduct in camera review of the records and allow discovery of relevant material. (People v. Thompson (2006) 141 Cal.App.4th 1312, 1316; Evid. Code, § 1045, subd. (a).) If requested to do so by an appellant, an appellate court can and should independently review the record of the trial courts in camera Pitchess hearing to determine whether the trial court ordered all relevant complaints disclosed. (See People v. Mooc (2001) 26 Cal.4th 1216, 1229.) We review the trial courts ruling on a Pitchess motion for abuse of discretion. (Id. at p. 1228.)
We have reviewed the transcript of the in camera proceedings. We see no error or abuse of discretion in the trial courts ruling on disclosure.
DISPOSITION
The judgment is affirmed.
We concur:
VOGEL, Acting P. J.
JACKSON, J.