Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR199780.
Siggins, J.
Appellant Bryan Damon Patterson represented himself at trial. He was found guilty by a jury of two counts of second degree robbery and one count of assault, with a finding that he personally used a firearm in commission of the crimes. He argues that any one of three errors warrants reversal. The trial court wrongfully excluded him from pretrial proceedings and engaged in harmful ex parte discussions with the prosecutor. Testimonial hearsay was used to identify him in violation of his right to confrontation. And the trial court wrongfully declined to give an instruction that the prosecution destroyed potentially exculpatory evidence.
We agree with Patterson that he should not have been excluded from pretrial hearings and that the trial court engaged in inappropriate ex parte discussions, but conclude that any such error was harmless. We also hold the trial court was correct when it declined to instruct on the destruction of evidence. Finally, we agree with Patterson that the hearsay evidence used to identify him was admitted in violation of his right to confrontation, but this too was harmless error. Thus, we affirm.
FACTUAL BACKGROUND
Vallejo Police Officer Ronald Braxton was on routine patrol at 2:00 a.m. one morning when he heard over the radio that there had been a robbery at the local Walgreen’s store. Just after hearing the broadcast, Officer Braxton spotted a car in the area. He stopped his patrol car to watch the car, and once it passed him, he began to follow it. Soon he was engaged in a high speed pursuit that ended when Officer Braxton trapped the car at the end of a cul-de-sac. When he did, three men got out of the car and ran. Patterson was one of them. He was apprehended by another officer and brought to Officer Braxton several minutes later. Patterson was detained in a patrol car.
Meanwhile, Officer Rob Wardlow picked up robbery victim Susan Fowler at the Walgreen’s and drove her to where Patterson was detained by the police. When they got there, she pointed to Patterson as the man who robbed her. Then she was taken to the cul-de-sac where Officer Braxton stopped the car. She pointed to a red purse on the floor of the car as hers and it was returned to her.
When officers searched Patterson’s pockets incident to his arrest, they found a large amount of cash and a Walgreen’s cash register receipt. While he was being driven to the police station, Patterson told an officer that he ran because he thought there was a warrant out for his arrest. He also explained that he had a lot of money because he was a drug dealer, but that he did not have any drugs on him because he discarded them while he was running away from the police.
Patterson testified at trial. He was driving in the vicinity of the Walgreen’s store when three men approached his car, assaulted him by punching him in the face and took his car away from him. Because he thought there was a warrant out for his arrest, he had drugs on him, and he had argued with his parole officer earlier in the day, Patterson was trying to avoid the police. Following the carjacking he tried walking to his friend’s house but got lost because he didn’t know the area very well. So, he wandered around on foot for 30 to 45 minutes, when he saw his car being chased by the police. Because the police were in the area, he too started to run and was ultimately confronted by them and apprehended.
When Officer Braxton came up to Patterson and some other officers, he said Patterson had hopped out of the car involved in the pursuit. But Patterson believes the people who robbed the Walgreen’s were the same ones who took his car. He also denied having the Walgreen’s receipt and said it was planted on him by the police.
The robbers were all said to be armed and wearing dark hooded sweatshirts. One wore white tennis shoes. When he was arrested, Patterson was wearing a white t-shirt, black jeans and white tennis shoes. Three black hooded sweatshirts were found where the car was stopped in the cul-de-sac. There was also some candy similar to the candy that was taken from the Walgreen’s on the floor of the car.
One of the victims testified that two of the men wore black sweatshirts and one wore a brown sweatshirt.
DISCUSSION
A. Proceedings Outside Defendant’s Presence
There is no question that a criminal defendant representing himself has the right to be present at all critical stages of the proceedings. (People v. El (2002) 102 Cal.App.4th 1047, 1050.) Such a defendant’s exclusion from a substantial portion of trial, particularly when testimony is taken, is structural constitutional error that may be reversed without regard to prejudice. (People v. Carroll (1983) 140 Cal.App.3d 135, 142.) But a showing of prejudice is required when a self-represented defendant is excluded from a small portion of a trial, or from proceedings that bear no reasonable or substantial relationship to his or her defense of a charge. (People v. Carasi (2008) 44 Cal.4th 1263, 1299; People v. El, supra, 102 Cal.App.4th at p. 1050.) While in camera or ex parte proceedings are generally disfavored, they do not result in reversal where the subject of such discussions has no reasonable relationship to the defense. (People v. Carasi, supra, 44 Cal.4th at p. 1299.)
Here, Patterson seeks reversal because he was excluded from six hearings that primarily concerned the charges against his codefendant. He also challenges the trial court’s decision to excuse a witness Patterson had subpoenaed for a postverdict motion hearing following the judge’s ex parte conversation with the prosecutor. We have reviewed the transcript of each of the proceedings held in Patterson’s absence and the circumstances of the ex parte conversation. While we can discern no reason from the record why Patterson was not included in the proceedings or the district attorney was not instructed to seek to quash the subpoena by noticed motion, none of the proceedings reasonably bore upon Patterson’s ability to mount a defense to the charges or otherwise caused him any prejudice.
On March 13, 2009, the court heard three motions filed by Patterson’s codefendant. One was to dismiss the information on the grounds that there was insufficient evidence at the preliminary hearing to identify the codefendant. Another motion was for reduction of his bail. The third motion was to continue the trial date. The court denied the motion to dismiss, reduced the codefendant’s bail and continued the trial date. Patterson was brought into the courtroom following the court’s ruling on the continuance, and he was given an opportunity to address the timing of the trial. The court also heard Patterson’s motion to dismiss due to the loss or destruction of exculpatory evidence.
Patterson says proceedings were held in his absence on May 7, 2009, because the reporter’s transcript for that date begins with the court asking that Mr. Patterson be brought into the courtroom when counsel for his codefendant was already present. But there is no claim that the court conducted any particular proceedings that day in Patterson’s absence. There is a similar transcript of proceedings from July 23, 2009. The court informed Patterson that his codefendant was present earlier in the day and the court and counsel confirmed a trial date. Thereafter the hearing concerned Patterson’s discovery motions.
On September 10, 2009, Patterson was brought into the courtroom and told that the charges against his codefendant were dismissed about an hour before he was called. There was also discussion during that hearing of a motion to sever that was filed by Patterson’s codefendant and heard by the court in Patterson’s absence on August 28 and 31. Finally, on December 11, 2009, Patterson learned that the trial judge told the deputy district attorney in an ex parte conversation that a witness Patterson had subpoenaed for a posttrial motion need not appear.
In People v. Dent (2003) 30 Cal.4th 213, our Supreme Court reversed a judgment of death because the trial court did not honor the defendant’s right of self-representation. In doing so, the court recognized that most defendants are better served when they are represented by counsel. (Id. at p. 222.) In concurrence Justice Chin observed that the legislatively stated policy of this state, although not the law, acknowledges that criminal defendants who represent themselves often disrupt the proceedings and make them unduly protracted. (Id. at p. 224.) Their self-representation places a heavy burden upon the administration of criminal justice. (Ibid.) As true as these statements of policy may be, it is incumbent on our trial courts to implement and honor the right of self-representation. Here, Patterson’s absence from the pretrial hearings appears to have been as a matter of custom rather than deliberate exclusion, but it is nonetheless troubling. The same seems true of the ex parte conversation between the court and the district attorney concerning the subpoena. It seems more a matter of familiarity and informality. But although troubling and a cause for concern, these events were not prejudicial.
On March 13, Patterson was absent during his codefendant’s motions to dismiss and reduce bail. Neither concerned Patterson nor implicated his defense. While the court also continued the trial date without Patterson present, he was allowed to address the issue of the continuance. Similarly, there is no indication that proceedings conducted on July 23 involved anything other than the trial date. And there is no indication in the record that any proceedings affecting Patterson’s interest were held in his absence on May 7.
The hearings on the motion to sever conducted August 28 and 31 come closest to implicating Patterson’s rights, but we can discern no prejudicial effect resulting from those proceedings in light of the dismissal of charges against his codefendant. While it is not clear the court ever ruled on the motion, whether it did or not is academic in light of the dismissal—Patterson was going to trial alone as the sole remaining defendant irrespective of the outcome of the motion to sever.
Finally, Patterson apparently subpoenaed the witness for the posttrial motion to demonstrate that a police department witness had lied when he testified that Patterson was provided in discovery all the police photographs taken in his case. The record reflects that the court was very indulgent of Patterson’s posttrial motions and his effort to prove that police suppressed exculpatory evidence. In the circumstances, there was no factual basis for the court to further entertain Patterson’s claim, and no reason to conclude the court abused its discretion when it determined the witness need not appear. Thus, even though the court should not have quashed the subpoena in the ex parte discussion with the district attorney, doing so was not prejudicial.
B. The Victim’s Hearsay Identification of Defendant
During trial, Officer Wardlow testified that one of the robbery victims positively identified Patterson in the field as one of the robbers when she pointed to him while he was sitting in the back of the patrol car. She also identified the purse that was taken from her when she pointed to it on the floor of Patterson’s car. The following is the police officer’s verbatim description of Susan Fowler’s identification of Patterson and her purse:
Q: Without saying anything about what Fowler said, did she do anything when you presented her with a person?
A: She pointed to him.
Q: To a person? Or did she make any physical reaction when you brought - - when you showed her a person?
A: Well, she was sitting behind me, so, no, I don’t know if she did any physical reaction. [¶]... [¶]
Q: What property did you show her?
A: The red purse with the clear plastic front. [¶]... [¶]
Q: Okay. When you showed that to the person who had an ID that said Susan Fowler, this person you’ve indicated, what if anything did she do physically?
A: She pointed to the purse.
Patterson says that admission of this nonverbal hearsay was constitutional error that deprived him of his right to confront the witnesses against him as applied in Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354; 158 L.Ed.2d 177] (Crawford).
In order to determine whether admission of the victim’s hearsay identification of Patterson violated his Sixth Amendment right to confront the witnesses against him, we need to determine whether it was testimonial. A statement may be testimonial when it is the equivalent of an affidavit, custodial examination or interview, prior testimony or other material prepared in anticipation of presentment at trial. (Crawford, supra, 541 U.S. at pp. 51-52, 56, fn. 7.) If a statement is testimonial it may be used only when the declarant is unavailable and was earlier subject to cross-examination. If the statement is not testimonial, we consider whether it qualifies for admission as a firmly rooted exception to hearsay. (See id. at p. 68.)
Here, the prosecution made no showing that Fowler was unavailable to be called as a witness at the time of trial. In fact, she was listed as an anticipated witness by the prosecution. Why she did not appear and testify is nowhere revealed in the record. Moreover, she was not subject to prior examination on Patterson’s behalf. Thus, assuming that her hearsay identification of Patterson was testimonial in nature (see Crawford, supra 541 U.S. at pp. 51-52, 68, fn. 10 [declining to spell out comprehensive definition of “testimonial”]), it was inadmissible under the rule established in Crawford.
Even if Fowler’s identification was not testimonial, and therefore not a violation of Patterson’s confrontation rights, its admission still presents a potential hearsay problem. We are unable to conclude that Fowler’s identification fell within any statutory exception to hearsay. (Evid. Code, §§ 1220-1390.) The attorney general identifies no such exception and neither can we.
The question, then, is whether the error is prejudicial. To assess whether the admission of Fowler’s identification requires reversal, this court obtained the trial exhibits admitted into evidence. Based upon our review of the photographic and video evidence, we have no reasonable doubt that Patterson was depicted in the video of the Walgreen’s robbery. When he was arrested, Patterson was wearing white tennis shoes and distinctive Black Echo Unlimited brand jeans with large and elaborate embroidery on the seat. So was one of the robbers. Moreover, although not definitive, the face and build of the robber wearing the distinctive jeans and white shoes are not dissimilar to Patterson. Finally, a photograph of the purse discovered in the getaway car matches the purse carried by a customer who entered the Walgreen’s at the time of the robbery. When this evidence is considered in combination with the Walgreen’s register receipt in Patterson’s pocket at the time of his arrest, we have no doubt any Sixth Amendment error was harmless. Thus, we have considered the potential prejudice of the hearsay under the more stringent standard that applies to errors of constitutional magnitude. (Compare Chapman v. California (1967) 386 U.S. 18, 24 with People v. Watson (1956) 46 Cal.2d 818, 836.) There was none.
C. The Refusal to Instruct on the Prosecution’s Destruction of Evidence
Patterson says that the real robbers of the Walgreen’s store struck him in the face when they took his car. The blows fractured his jaw and blood from his mouth was on his t-shirt and likely in the car. Patterson argues that evidence of the blood in his car would have corroborated his claim that he was carjacked.
When the car was impounded at the time of Patterson’s arrest, police instructed the tow operator to hold and not release it until further notification. However, the car was released from impound and sold before it could be tested for the presence of Patterson’s blood. Patterson moved to dismiss the charges due to the destruction of this potentially exculpatory evidence. After considering the testimony that police had nothing to do with the release of Patterson’s car, the court denied the motion. Patterson asked the court to instruct the jury that it could draw an inference adverse to the prosecution because the car was improperly released from impound and not available to the defense for testing. ~ (4 RT 754-757)~ The court declined to give the instruction.
“[T]he courts enjoy a large measure of discretion in determining the appropriate sanction that should be imposed because of the destruction of discoverable records and evidence. ‘[N]ot every suppression of evidence requires dismissal of charges.... The remedies to be applied need be only those required to assure the defendant a fair trial.’ ” (People v. Zamora (1980) 28 Cal.3d 88, 99.) To determine what, if any, sanction is warranted when evidence is lost or destroyed, courts are to consider: (1) the particular circumstances attending the destruction; (2) the materiality of the missing evidence; and (3) the impact the imposition of a sanction may have on future cases or police conduct. (Id. at p. 100.) The illegal and malicious suppression of evidence may require dismissal, but the lawful or proper destruction of evidence warrants no sanction at all. (Ibid.)
Here, the trial court concluded the evidence was lost at most due to the inadvertence of a tow operator, and not due to police misconduct. In this respect, a sanction would serve no legitimate prophylactic purpose for future cases or police conduct. The value of the missing evidence was also not particularly compelling. At most, it would have shown the presence of Patterson’s blood in his car. There is nothing about the missing evidence that suggests its presence could only be a result of the carjacking. It would not demonstrate his innocence, and there is no reason to conclude the missing evidence was critical to Patterson’s defense. There was no reason to instruct on the destruction of evidence.
DISPOSITION
The judgment is affirmed.
We concur: Pollak, Acting P. J., Jenkins, J.