Opinion
E064144
10-24-2017
THE PEOPLE, Plaintiff and Respondent, v. SIDNEY LEE ROBINSON, Defendant and Appellant.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Sharon Rhodes and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT
The court has reviewed the petition for rehearing filed November 8, 2017, the answer filed November 15, and the reply to the answer filed November 16. The petition is denied. The opinion filed in this matter on October 24, 2017, is modified as follows:
On page 14, in the last sentence beginning "Despite this, . . . ," of the second full paragraph, add "before trial" after "Despite this," change "never" to "did not," change "subpoenaed" to "subpoena," and add footnote 2, which will require renumbering of all subsequent footnotes. The sentence and footnote 2 should read as follows:
Despite this, before trial, defendant did not subpoena Home Depot for video footage of the incident.2
2 In support of a petition for rehearing, defendant lays the blame for that failure on his first investigator, who the court relieved. But, one month before the trial commenced, the trial court granted defendant additional investigative fees and appointed a second investigator for the specific purpose of subpoenaing witnesses and taking care of "subpoenaing issues." Nothing in the record suggests defendant requested, before trial, that the second investigator subpoena Home Depot for the video evidence.
On page 17, insert a new paragraph before the paragraph that begins "Clearly, video footage . . . ." The new paragraph should read:
"[T]he prosecutor ha[s] no constitutional duty to conduct defendant's investigation for him. Because Brady and its progeny serve 'to restrict the prosecution's ability to suppress evidence rather than to provide the accused a right to criminal discovery,' the Brady rule does not displace the adversary system as the primary means by which truth is uncovered. (United States v. Martinez-Mercado (5th Cir. 1989) 888 F.2d 1484, 1488.) Consequently, 'when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim.' (United States v. Brown (5th Cir. 1980) 628 F.2d 471, 473; see also United States v. Stuart (8th Cir. 1998) 150 F.3d 935, 937 ['Evidence is not suppressed if the defendant has access to the evidence prior to trial by the exercise of reasonable diligence.']; United States v. Slocum (11th Cir. 1983) 708 F.2d 587, 599.)" (People v. Morrison (2004) 34 Cal.4th 698, 715; accord, People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 715-716; People v. Williams (2013) 58 Cal.4th 197, 257.)
On page 18, insert a new paragraph at the end of section II.B.2. (The new paragraph will be the last paragraph before section II.C.) The new paragraph should read:
Moreover, nothing prevented defendant from timely obtaining any extant video footage from Home Depot himself. The trial court properly granted defendant investigation fees and appointed investigators to assist defendant in preparing for his defense. Defendant expressed frustration and skepticism when the prosecutor informed him that no video or photographic evidence had been provided from Home Depot, yet he did not direct his investigators to subpoena Home Depot before trial. It was not until after trial, when the court appointed a public defender to represent defendant for purposes of potential posttrial motions and sentencing, that defendant finally subpoenaed Home Depot. Because the video footage, if any, was fully available to defendant before trial, and defendant did not act diligently to obtain it, we find no Brady violation.
These modifications do not change the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. SLOUGH
J.
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. SWF1400686) OPINION APPEAL from the Superior Court of Riverside County. Michael J. Rushton, Judge. Affirmed. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Sharon Rhodes and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Sidney Lee Robinson, who represented himself at trial, appeals from his convictions for theft (Pen. Code, § 484, subd. (a)) and second degree burglary (Pen. Code, § 459). Defendant contends: (1) He was deprived of reasonable access to the jail law library during his trial, in violation of his rights under the Fifth and Sixth Amendments to the United States Constitution; (2) the prosecution failed to comply with its duty under Brady v. Maryland (1963) 373 U.S. 83 (Brady) to disclose potentially exculpatory evidence; and (3) the trial court erred by not dismissing his burglary conviction under Proposition 47, which went into effect after defendant was convicted but before he was sentenced. Because we find no reversible error, we affirm.
I.
FACTS
The underlying facts of defendant's crime are not relevant to the legal issues in this appeal, so we will set them out briefly. Defendant and a confederate entered a Home Depot store in Hemet, then separated. The two men separately walked to the paint department. Defendant's confederate selected a paint sprayer, placed it on his shopping cart, and walked away. Defendant asked a Home Depot associate to bring down the exact same model paint sprayer from an overhead bin. Defendant then placed it on his cart and walked out of the paint department. Defendant's confederate walked to the outside garden department and paid for the paint sprayer he had placed on his cart. After doing so, the confederate left the paint sprayer at the register, walked over to defendant who was also in the garden department, and handed him the receipt. The confederate then purchased a can of soda and walked out of the store with the paint sprayer he had paid for.
Defendant then walked to the self-checkout register at the front of the store and purchased chain saw oil. Defendant did not pay for the paint sprayer that was on his shopping cart. Defendant then walked out of the store and into the parking lot with the paint sprayer he did not pay for and held in his hand the receipt for the paint sprayer that his confederate had paid for. Two Home Depot loss prevention officers followed defendant into the parking lot and walked past him. The two officers then turned around, identified themselves as loss prevention officers, and told defendant to stop. Defendant pushed his cart forward and tried to run away. One of the officers caught up to defendant and grabbed him in a bear hug, and the two men fell to the ground. Defendant was placed in handcuffs and walked back inside the store. Another loss prevention officer had already detained defendant's confederate. Officers with the Hemet Police Department responded and arrested defendant and his confederate.
In an information, defendant was charged with one count of theft (Pen. Code, § 484, subd. (a), count 1) and one count of second degree burglary (Pen. Code, § 459, count 2). With regard to count 1, the People alleged defendant suffered a prior conviction for theft for purposes of sentencing under former section 666 of the Penal Code. The People also alleged defendant suffered six prior prison terms (Pen. Code, § 667.5, subd. (b)) and three serious or violent felony strike convictions (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)).
A jury found defendant guilty on both counts. Defendant then admitted to having a prior theft conviction and three strike priors, and to serving four prior prison terms. On the People's motion, the trial court dismissed the two prior prison term allegations that defendant did not admit. Before sentencing, the trial court granted defendant's motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and struck two of defendant's strike priors. (Pen. Code, § 1385.) The trial court then sentenced defendant on count 1 to the upper term of three years for petty theft with a prior (Pen. Code, former § 666), doubled pursuant to the one strike law based on the remaining strike prior (Pen. Code, §§ 1170.12, subd. (c)(1), 667, subd. (e)(1)), for a term of six years in state prison. The court sentenced defendant on count 2 to the upper term of three years, doubled pursuant to the one strike law, but stayed execution of the sentence pursuant to Penal Code section 654. Finally, the trial court imposed four one-year sentence enhancements for each of defendant's admitted prior prison terms, to run consecutively with the sentence on count 1, for a total term of 10 years in state prison.
Defendant timely appealed.
II.
DISCUSSION
A. Defendant Was Not Denied Reasonable Access to the Jail Law Library.
Defendant argues he was deprived of reasonable access to the jail library to properly prepare for trial. As our recitation of the relevant proceedings attests, defendant was in fact provided with reasonable access to the law library.
1. Additional Background.
Less than two weeks after his arraignment on the complaint, defendant filed motions to represent himself, for appointment of an investigator and provision of defense services, and for orders striking special allegations in the complaint and dismissing one of the counts. Defendant also filed a motion to compel discovery from the prosecutor. These handwritten motions were prepared by defendant himself. During the hearing on defendant's request to represent himself (Faretta v. California (1975) 422 U.S. 806 (Faretta)), the trial court asked defendant if he understood the sheriff had control over the frequency and duration of his visits to the jail law library. Defendant replied, "Yes, I do." The court granted defendant's request to represent himself, relieved the public defender, and appointed an investigator to assist defendant. The written order expressly stated defendant was to be provided "reasonable access to law library kiosks as allowed by jail regulations."
Before a hearing set on March 11, 2014, for defendant's discovery motion and his motions to strike, defendant filed new motions to strike all special allegations from the complaint on ex post facto grounds. During the hearing, defendant requested the court withdraw his previously filed motions with the exception of the motion to compel. He explained that his original motions were prepared before he had a chance to go to the law library, and that after visiting the law library he had prepared motions "more suitable to [his] circumstances." The court withdrew the pending motions, heard arguments on defendant's new motions, and denied them.
After the preliminary examination, the magistrate bound defendant over for trial, and the People filed an information. On the day of his arraignment on the information, defendant filed a motion to compel the jail to provide him with access to a phone three to four times a week and to the law library for one hour a day. Attached to the motion were jail inmate grievances defendant had submitted. In a grievance he submitted on February 26, 2014, defendant complained that he had been denied access to the library. The form indicated the grievance was resolved to defendant's satisfaction because he was given access to the library the very next day. A grievance submitted by defendant on March 14, 2014, complained of no reasonable access to the phone to communicate with his investigator. The form included notes from a sergeant indicating defendant had in fact been offered access to the phone and to the law library a total of seven times in a 14-day period. The notes also implied defendant declined some or all of those opportunities to visit the library and instead requested access at other times. Another grievance submitted on April 9, 2014, complained of lack of access to the phone. The form indicated defendant had been provided access to the law library two days later.
At the next hearing, the judge indicated the parties had agreed to permit the trial court to speak ex parte to jail officials about defendant's complaints about access to the phone and jail law library. A deputy responsible for coordinating orders relating to self-represented defendants informed the judge that defendant had been offered access to the law library a number of times, but the last time defendant had actually used the law library was on March 24, 2014. Defendant had been offered access to the library on March 30, March 31, and again on April 15. Each time, defendant declined. The judge asked defendant, "Why are you asking me to make orders for you with regards to the law library when you are declining [to] tak[e] advantage of access when it's offered to you?" Defendant denied that he had declined the offers. He explained that during one visit to the law library the computers did not work and, on another occasion, he had been offered access while meeting with his investigator. He was forced to choose between using the library or meeting with his investigator. The judge was not persuaded. "[B]ased on what I've been told and what's reflected here, you had access to the law library on February 27th. You had access to the law library seven times in 14 days immediately preceding March 14th. And you were—you had access to the law library on March 24. You declined on the 30th, declined on the 31st. You had access to the law library on April 11th and declined again on the 15th." The judge concluded the sheriff was, in fact, providing defendant with reasonable access to the law library, and again merely directed that defendant be provided with "reasonable access to the law library as allowed by jail regulations."
On June 3, 2014, defendant filed another motion directing the jail to provide him with access to the law library. Defendant attached a jail grievance form submitted on May 12, 2014, in which he complained he was only provided access to the law library one day a week and claimed he was entitled to access two hours a day. Defendant also attached a grievance he submitted on March 19, in which he complained that the law library computers were broken. Defendant asked the trial court to order the sheriff to "follow the rules of court." The trial court indicated its understanding was that the local rules of court provided that a self-represented defendant was entitled to a maximum of one visit to the law library a day, but did not guarantee that a defendant be provided with a visit every day. Because defendant had, in fact, been allowed to visit the law library once a week, the court concluded the jail had complied with the local rules of court. The court ordered the sheriff's department to allow defendant access to the jail law library "in accordance with the local rules of court."
In his motion, defendant referred to "Local Rules of Court, § 6.41" and "California Rules of Court, § 8.42," which supposedly governed access to the jail law library. The trial court assumed the rules cited were, in fact, applicable. We have been unable to find any local rule adopted by the Riverside County Superior Court that governs access to the jail law library, and rule 8.42 of the California Rules of Court has nothing to do with jail inmates. Instead, defendant appears to have relied on a local rule adopted by the Los Angeles County Superior Court governing library privileges for self-represented defendants held in that county's jail. (See Super. Ct. L.A. County, Local Rules, former rule 6.41, current rule. 8.42(d)(1).)
On June 30, 2014, defendant informed the court he would be ready for trial on July 17. He expressed no concerns about his access to the jail law library.
A week later, defendant filed a motion to exclude evidence and a request for judicial notice, both of which were supported by citations to legal authorities, which tended to show defendant had been provided access to the law library. Nevertheless, defendant informed the court he was "not getting any access to the law library." The court asked, "How did you research your motions?" Defendant replied that a deputy had allowed him access to the library. The court ordered that defendant be provided access to the law library and told defendant to inform the court if he had any further problems.
Two days later, defendant again complained he was being denied access to the law library. The court again ordered that defendant be provided access to the law library, specifically directing its order to the jail watch commander.
On August 7, 2014, defendant once more complained he was being denied access to the library and told the court, "it's kind of hard to prepare a motion when I have no access to the codes." Defendant also indicated that he wished to prepare motions in limine to exclude evidence. The court issued an order to show cause (OSC) "so the Sheriff's Department can come in and explain what the procedures are and why you aren't being . . . granted access to the law library." During the OSC hearing conducted a week later, a correctional sergeant told the court that since February 25, 2014—a period of nearly five and a half months—defendant had been offered access to the law library a total of 34 times. These 34 times included instances when defendant himself asked to use the library and when correctional officers asked defendant if he wished to use the library. The sergeant explained that the law library consisted of a computer kiosk, which is placed in a program room. Of those 34 occasions when defendant was offered access to the library, defendant accepted 29 times. Defendant had been offered access the day before the hearing, but he declined. The sergeant told the court that the majority of times defendant was offered access to the library were during the morning hours, though some were in the afternoon or late into the evening.
Defendant did not dispute the number of times he had been offered access to the law library, but told the court he needed access every day because of the prison time he was facing. Defendant again referred to the requirements of the local rules of court. When the court pointed out that defendant had not taken advantage of all the offers of access provided to him, defendant explained he declined to go on a number of occasions because he was still processing information provided by the prosecution. The court concluded defendant had been provided adequate access to the law library, "not only in time but the amount of appearances," and took the OSC off calendar.
On September 19, 2014, defendant asked for an order directing the jail to permit him access to the law library on weekends. Defendant explained he was being housed in "B Pod," and that his access to the library was limited to Mondays. Defendant told the court he usually needed between one and a half to two hours on the computer. The court directed the jail to provide defendant access to the law library that evening (a Friday), and the next two days over the weekend, for an hour and a half each day. The court clarified that it was "not giving a certain time frame" for when defendant was to be granted access, but was simply directing that defendant be provided an hour and a half on each of those days.
The next court day, after completing voir dire, defendant informed the court that he had not been afforded access to the phone and that jail officials woke him up at 2:30 a.m. to take him to the law library. Defendant asked that the court "narrow the window" during which he would be provided access to the law library. The court ordered that defendant be permitted to use the law library every evening after court for one hour before midnight.
During a discussion on September 23, 2014, about the admissibility of hearsay statements defendant wished to elicit from two witnesses, specifically regarding his unavailability as a witness, defendant mentioned he did not plan on testifying because he hoped to introduce video evidence depicting Home Depot loss prevention officers beating him. However, he had not been provided access to the phone to call his ex-wife to ascertain whether the video existed. In passing, defendant again complained he was being denied access to the law library.
Defendant made no further complaints during trial about being denied access to the law library.
2. Analysis
"[D]epriving a self-represented defendant of 'all means of presenting a defense' violates the right of self-representation. (People v. Jenkins [(2000)] 22 Cal.4th [900,] 1040, citing Milton v. Morris (9th Cir. 1985) 767 F.2d 1443, 1445-1446.) Thus, 'a defendant who is representing himself or herself may not be placed in the position of presenting a defense without access to a telephone, law library, runner, investigator, advisory counsel, or any other means of developing a defense.' (People v. Jenkins, supra, 22 Cal.4th at p. 1040.) Yet, as we have observed, '[i]nstitutional and security concerns of pretrial detention facilities may be considered in determining what means will be accorded to the defendant to prepare his or her defense. [Citations.] When the defendant has a lawyer acting as advisory counsel, his or her rights are adequately protected. [Citations.]' (Ibid.) In the final analysis, the Sixth Amendment requires only that a self-represented defendant's access to the resources necessary to present a defense be reasonable under all the circumstances. (See People v. Jenkins, supra, 22 Cal.4th at pp. 1040-1041.)" (People v. Blair (2005) 36 Cal.4th 686, 733, disapproved on another ground by People v. Black (2014) 58 Cal.4th 912, 919.)
The "crucial question" here "is whether [defendant] had reasonable access to the ancillary services that were reasonably necessary for his defense." (People v. Blair, supra, 36 Cal.4th at p. 734.) Defendant can only prevail if he can establish that denial of reasonable access to the jail law library caused him prejudice. (Id. at p. 736.) Although access to jail law libraries by defendants who freely choose to represent themselves at trial "may not arbitrarily be denied, nor, once conferred, terminated or restricted [citation], there is no requirement that such defendants be afforded specific books or access at specific times or on specific days." (People v. Davis (1987) 189 Cal.App.3d 1177, 1196, fn. omitted, disapproved on another ground by People v. Snow (1987) 44 Cal.3d 216, 225-226.)
Although defendant complained time and time again during pretrial proceedings that he was not being given sufficient access to the law library, in violation of the trial court's express orders, the record set forth above demonstrates that defendant's jailers afforded him with ample opportunities to visit the law library. Rather than avail himself of every opportunity, defendant turned down a number of those offers. Moreover, notwithstanding defendant's standing complaint about the lack of access to the law library, he filed numerous pretrial motions challenging the pleadings and addressing the admissibility of evidence. On this record, we cannot say defendant was denied reasonable access to the jail law library or that, assuming he was denied reasonable access, defendant was in any way prejudiced.
B. The People Did Not Violate Brady by Failing to Discover and Disclose Video Evidence That Did Not Exist.
Defendant argues the prosecution failed to comply with its duty under Brady, supra, 373 U.S. 83, to disclose potentially exculpatory evidence. In particular, defendant argues the prosecutor did nothing to obtain video surveillance footage from the Home Depot store depicting the alleged theft. This claim must fail. The record demonstrates the People (both the prosecutor and the police) requested that Home Depot provide it with any photographic or video evidence of the alleged theft, and was consistently told none existed. The loss prevention officer testified that no video footage of the incident existed. The People were not required to make additional efforts to obtain and disclose chimerical evidence.
1. Additional Background.
The minutes from defendant's arraignment indicate the prosecutor provided discovery to defendant's appointed attorney. After the court granted defendant's Faretta motion, the prosecutor provided defendant himself with redacted discovery.
During a hearing on a motion to compel discovery, defendant explained he wanted to know if the prosecutor had surveillance video. "I haven't had no answer or received anything from him on that issue. And it has to be some kind of surveillance. I mean, Home Depot is full of cameras." After defendant and the prosecutor had an opportunity to discuss the discovery request off the record, the prosecutor told the court, "on this matter, in reviewing the [police] report with Mr. Robinson, there were no videos received on this. It makes the point clear that there was no security footage that was received by law enforcement."
In an ex parte request for additional hours and miles for investigation, defendant's appointed investigator indicated one of defendant's requests was for the investigator to "[c]ontact Home Depot Security to obtain a video of the incident, if one exists." (Italics added.) The court granted the request.
During a hearing on motions in limine, the prosecutor informed the court he had no photographs or video evidence to introduce at trial. Nonetheless, defendant moved to exclude any video evidence that had not been disclosed. The prosecutor again informed the court he had no video evidence, so the court denied the motion. When discussing a motion in limine from defendant to admit court records, defendant explained he wished to impeach the testimony of the Home Depot loss prevention officer with his prior testimony in two other prosecutions. According to defendant, in the other two cases the loss prevention officer testified the same way to support felony charges and denied the existence of video footage that might have contradicted his testimony. "[H]e always said there is no video, but there is capability of video, and so the jury is always left to just his opinion." Defendant also told the court that surveillance cameras were installed in all Home Depot stores in 2004. Despite this, defendant never subpoenaed Home Depot for video footage of the incident.
During his opening statement, defendant argued the People were only presenting half the story. He told the jury that Home Depot has an elaborate video surveillance system. "You cannot go into that store and do anything without being taped." However, defendant argued the evidence that would prove what actually happened was gone and, instead, the jury would only hear testimony from the person who had accused him of stealing.
The loss prevention officer who observed the theft testified that the Hemet Home Depot store only had two cameras that were specifically pointed at merchandise. One was in the hardware department pointed at high-end items such as laser levels. Other cameras were pointed at the cash registers and the store's entrances and exits. The witness testified the store's loss prevention officers did not sit in a room watching video screens, but were instead on the floor visually watching high-theft merchandise and observing what was going on in the store. When asked if the alleged theft in this case was recorded by video surveillance cameras, the loss prevention officer testified there was no video of the incident because the cameras were pointed at other areas of the store. The loss prevention officer also testified he did not need to review video footage because he was 100 percent certain that he had observed defendant commit a theft. When the arresting officer asked if there were any video recordings of the theft, the loss prevention officer told him, "no, there was none."
During oral argument, appellant's counsel implied that Home Depot did, in fact, have video evidence of the theft but it had been destroyed before it could be subpoenaed. To the contrary, the record shows that whatever video surveillance footage from the day of the theft did exist was from other parts of the store, not from the paint department where defendant's confederate handed him the receipt for the first paint sprayer. That Home Depot was not subpoenaed for the footage before it was destroyed is immaterial because the record simply fails to support the assertion that video footage of the theft ever existed.
2. Analysis.
"In Brady, [the Supreme] Court held 'that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' 373 U.S., at 87. . . . We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107 . . . (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676 . . . (1985). Such evidence is material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' Id., at 682 . . . ; see also Kyles v. Whitley, 514 U.S. 419, 433-434 . . . (1995). Moreover, the rule encompasses evidence 'known only to police investigators and not to the prosecutor.' Id. at 438 . . . . In order to comply with Brady, therefore, 'the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police.' Kyles, 514 U.S at 437 . . . ." (Strickler v. Greene (1999) 527 U.S. 263, 280-281.)
"'While the prosecution must disclose any [Brady] information within the possession or control of law enforcement personnel, it has no duty to volunteer information that it does not possess or of which it is unaware.' [Citation.] Brady does not require the government to create exculpatory evidence that does not exist. [Citation.]" (U.S. v. Monroe (9th Cir. 1991) 943 F.2d 1007, 1011, fn. 2, italics added; accord, U.S. v. Alverio-Melendez (1st Cir. 2011) 640 F.3d 412, 424 ["because no fingerprint analysis report existed, the government did not commit a Brady violation in failing to turn over such a report"]; U.S. v. Edwards (5th Cir. 2006) 442 F.3d 258, 266-267 ["'[T]he prosecution has no duty [under Brady] to turn over to the defense evidence that does not exist . . . .'"]; U.S. v. Taylor (8th Cir. 2001) 253 F.3d 1115, 1117 [no Brady violation for failure to produce surveillance tapes that did not exist]; Stano v. Butterworth (11th Cir. 1995) 51 F.3d 942, 945 [rejecting Brady claim on habeas "because there cannot have been suppression of nonexistent evidence"].)
Clearly, video footage of the incident would have been helpful, indeed indispensable, in proving defendant's claim that he did not steal a paint sprayer but was instead framed by a loss prevention officer. Had exculpatory video evidence existed, and the People made no effort to obtain it or, worse still, having obtained the video and failed to disclose it to defendant, we might agree there was a Brady violation in this case. But, the record simply fails to support the notion that video evidence of the theft ever existed.
In addition, defendant claimed that a video of his being beaten by loss prevention officers in the parking lot existed. Like the Home Depot surveillance video, nothing in the record suggests it ever existed.
Defendant contends the record at most demonstrates that the People never received video evidence, but does not establish it never existed. The record does not support defendant's reading. To the contrary, the record demonstrates the People specifically requested that Home Depot hand over any photographs or videos depicting the theft. No such photographs or videos were provided to the People because they did not exist. The suggestion that the People should have ignored Home Depot's consistent denial of the existence of video evidence—supported by the sworn testimony from a loss prevention officer who was subject to cross-examination—and issued a subpoena duces tecum for production of nonexistent evidence finds no support in Brady or in its progeny.
As defendant points out in his briefs, a public defender appointed to represent defendant for purposes of a possible motion for new trial and for sentencing told the court that his office handled numerous cases with surveillance video from Home Depot. But, the public defender did not say which Home Depot stores those cases involved or whether they involved thefts from the paint department of the Hemet store. --------
C. Defendant May Not Obtain Relief Under Proposition 47 Because He Admitted to Suffering a "Super Strike."
At sentencing, defense counsel argued Penal Code section 459.5, which went into effect between defendant's conviction and sentencing dates, mandated that his burglary conviction be stricken. The court denied the request, concluding Penal Code section 459.5 does not apply retroactively. In this appeal, defendant requests that we direct the trial court on remand to strike his conviction for second degree burglary.
Penal Code section 459.5 defines the new crime of "shoplifting" as "entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950)." (Pen. Code, § 459.5, subd. (a).) If the entry is accomplished when the commercial establishment is not open during regular business hours, or the value of the property taken or intended to be taken exceeds $950, it is a burglary. (Ibid.) Any act which meets the definition of shoplifting must be charged as such, and no person charged with shoplifting may be charged with burglary or theft of the same property. (Pen. Code, § 459.5, subd. (b).) "Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170." (Pen. Code, § 459.5, subd. (a).)
Defendant contends that, because his case was not final on Proposition 47's effective date, Penal Code section 459.5 applies to him under the retroactivity rule established by In re Estrada (1965) 63 Cal.2d 740. Estrada "held that new laws that reduce the punishment for a crime are presumptively to be applied to defendants whose judgments are not yet final." (People v. Conley (2016) 63 Cal.4th 646, 656.) Defendant argues that once Penal Code section 459.5 is properly applied to him, his conviction for second degree burglary cannot stand. Proposition 47 does not empower this court to grant defendant the relief he seeks.
The courts have held that Proposition 47 does not permit an appellate court, reviewing a felony conviction on direct appeal, to retroactively modify a judgment and direct the trial court on remand to designate a felony conviction as a misdemeanor. Instead, the defendant's remedy is to petition the trial court under Penal Code section 1170.18, subdivision (a), to recall the sentence and resentence the defendant to a misdemeanor. (People v. Bradshaw (2016) 246 Cal.App.4th 1251, 1257-1258; People v. Diaz (2015) 238 Cal.App.4th 1323, 1331-1332; People v. Shabazz (2015) 237 Cal.App.4th 303, 313-314.)
We agree with the reasoning of those decisions. If an appellate court lacks the authority on direct appeal to direct the trial court to resentence a defendant to a misdemeanor, then surely it lacks the authority under Proposition 47 to direct the trial court to completely strike a felony conviction. The only relief available to defendant, therefore, would be to petition the trial court. However, as the People contend and defendant concedes, defendant is disqualified from relief under Penal Code section 1170.18, which provides in relevant part, "The provisions of this section shall not apply to persons who have one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 . . . ." (Pen. Code, § 1170.18, subd. (i).)
The serious or violent prior felonies governed by Penal Code section 667, subdivision (e)(2)(C)(iv), are often referred to as "'super strikes.'" (People v. Johnson (2015) 61 Cal.4th 674, 681-682.) There is no question that defendant's conviction for forcible rape in violation of former section 261.2 of the Penal Code (current § 261, subd. (a)(2)), which the People pleaded and defendant admitted, is a "super strike." (Pen. Code, §§ 667, subds. (d)(1), (e)(2)(C)(iv), 667.5, subd. (c)(3), 1192.7, subd. (c)(3); see People v. Sledge (2017) 7 Cal.App.5th 1089, 1101-1104.) Therefore, we must conclude defendant is simply ineligible for any relief under Proposition 47.
III.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. SLOUGH
J.