Filed 1/21/20 P. v. Strange CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID LAMAR STRANGE,

Defendant and Appellant.

F077816

(Super. Ct. No. MF012650A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant David Lamar Strange appeals the denial of his Pitchess motion for discovery of two police officers’ personnel records. He asks that we independently review the records reviewed by the trial court and determine whether the court abused its discretion by not providing him access to any records. Defendant also contends the prosecutor committed misconduct during argument. We affirm.

PROCEDURAL SUMMARY

On October 24, 2017, the Kern County District Attorney charged defendant with two counts of battery on a police officer (Pen. Code, § 243, subd. (c)(2); counts 1 & 2), resisting an officer with violence (§ 69; count 3), and criminal threats (§ 422; count 4). As to each count, it was further alleged defendant had suffered a prior “strike” felony within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and had served three prior prison terms (§ 667.5, subd. (b)).

On March 14, 2018, defendant filed a Pitchess motion for discovery of police officers’ personnel records.

On March 26, 2018, defendant moved to set aside count 2 under section 995.

On April 12, 2018, the trial court dismissed count 2. It also granted the in camera Pitchess hearing on the issues of dishonesty and excessive force. The court reviewed the records but found no relevant records and thus denied discovery of any records.

On June 15, 2018, a jury found defendant guilty of misdemeanor resisting an officer (§ 148, subd. (a)(1)), a lesser included offense of count 1; guilty of count 3; and not guilty of count 4. The trial court found true the prior strike allegation and two of the prior prison term allegations. The court later determined the prior prison term allegations were invalid.

On July 16, 2018, the trial court imposed a prison term of six years, as follows: on count 3, six years (the upper term of three years, doubled pursuant to the Three Strikes law), plus one year in jail to be served concurrently to the term on count 3.

On July 17, 2018, defendant filed a notice of appeal.

FACTS

On September 19, 2017, defendant was a passenger in a vehicle pulled over for running a stop sign in California City. Officer Guillen asked both defendant and the driver for identification. The officer discovered defendant had an outstanding arrest warrant, so he returned to the vehicle and asked defendant to step out so they could talk. Guillen told defendant about the warrant. Defendant explained he was out on bail and had done nothing wrong. He refused to get out of the vehicle. After repeating his request 10 to 15 times, Guillen called for backup. Officer Hulse arrived and he, too, could not convince defendant to get out of the vehicle. The two officers reached in and removed defendant from the vehicle. They handcuffed him and put him in the back of Guillen’s patrol car and Guillen drove to the California City jail.

Next, Guillen and defendant began the 70-mile trip to the 24-hour jail in Bakersfield. Before they got out of California City, Guillen heard loud banging from the back seat and suspected defendant was attempting to kick out a window. Guillen parked and saw that the plexiglass covering the back seat window was dislodged. Defendant was lying on his back with his feet facing the window. Guillen again called for assistance.

Sergeant Hightower and Hulse responded. Hightower brought leg restraints to prevent defendant from kicking. He asked defendant to step out of the car, but defendant refused. Eventually, Hightower and Hulse physically removed defendant from the car and positioned him over the trunk with his legs spread. Hightower attempted to put the leg restraints on, but defendant kicked Hightower in the chest. The officers took defendant to the ground and pinned him. Defendant clawed and scratched Guillen’s wrist, causing it to bleed, and would not release his wrist. Guillen ordered defendant to release his wrist. Guillen punched defendant on his back twice to make him release it.

The officers placed the leg restraints and a mesh spit hood on defendant and put him in the back seat. Defendant slumped over and Hightower was concerned about positional asphyxiation, especially during the long drive, so they asked defendant to sit upright and buckle in. Defendant did not comply. Hightower showed defendant his baton and struck him once in the ribs to make him comply because all other options had failed. Defendant bucked toward Hightower, who was still holding the baton. Hightower and Hulse pushed defendant down into the seat, but as Hightower pushed him with both hands, Hightower accidentally hit defendant’s chin with the baton. Defendant was then set upright and buckled in. At some point, defendant’s tooth was knocked out.

As Guillen resumed transportation of defendant, defendant spat a mixture of saliva and blood at Guillen through the spit mask from the back seat. It hit Guillen on the side of his face. Guillen repeatedly asked defendant to stop spitting, but he spat four or five times. Guillen told him if he did not stop, he would be pepper sprayed. He spat one more time, and Guillen stopped the vehicle and pepper sprayed defendant two times.

In Bakersfield, defendant had to be medically cleared. As Guillen looked for a parking space at the medical center, defendant yelled that he was going to “bust a cap in [Guillen’s] ass.” Defendant was medically cleared and then booked into custody.

DISCUSSION

I. Pitchess Motion

In his Pitchess motion, defendant requested disclosure of Guillen’s and Hightower’s personnel records tending to show dishonesty, including false statements in reports, false testimony, and any other evidence or complaints of dishonesty; acts of moral turpitude; and use of excessive force. The trial court granted the motion as to dishonesty and excessive force. The court conducted an in camera hearing and then denied the request for discovery. Defendant asks that we review Guillen’s and Hightower’s personnel records for any relevant records. The People do not object.

“A criminal defendant has a limited right to discovery of a peace officer’s personnel records. [Citation.] Peace officer personnel records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045.” (Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 318.) “[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both ‘ “materiality” to the subject matter of the pending litigation and a “reasonable belief” that the agency has the type of information sought.’ [Citation.] … If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], ‘the trial court should then disclose to the defendant “such information [that] is relevant to the subject matter involved in the pending litigation.” ’ ” (People v. Gaines (2009) 46 Cal.4th 172, 179.)

A trial court’s decision on a Pitchess motion is reviewed under an abuse of discretion standard. (People v. Prince (2007) 40 Cal.4th 1179, 1285.) The exercise of that discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.) We review the record for “materials so clearly pertinent to the issues raised by the Pitchess discovery motion that failure to disclose them was an abuse of Pitchess discretion.” (People v. Samayoa (1997) 15 Cal.4th 795, 827.) The record of the trial court’s in camera hearing is sealed, and appellate counsel are not allowed to see it. (See People v. Hughes (2002) 27 Cal.4th 287, 330.) Thus, on request, the appellate court must independently review the sealed record. (People v. Prince, supra, at p. 1285.)

After reviewing the files of confidential personnel records and the transcript of the in camera hearing, we have found no abuse of discretion committed by the trial court in its decision that no records were relevant and should be disclosed.

II. Prosecutorial Misconduct

Defendant contends the prosecutor’s comments disparaged defense counsel and diminished her credibility regarding her argument that defendant had acted in self-defense against the officers’ use of excessive force. Defendant claims the misconduct requires reversal.

During the prosecutor’s argument, the following occurred:

“[PROSECUTOR:] Now, red herring. A red herring is something that’s used to mislead or distract you. That’s what the defense is doing.

“[DEFENSE COUNSEL]: Objection. That’s improper and in violation of the in lim[ine motions].[ ]

“THE COURT: Once again keep in mind the Court’s instructions. What the attorneys are saying is not evidence. This is their chance to try to persuade you as to what you believe the evidence should be. So … they can’t tell you what the evidence and facts are. You will decide those yourself. You must follow the law as I give it to you.”

The prosecutor then continued, referring to the defense focus on not collecting the spit hood, not taking pictures of the Plexiglass, and using excessive force. The prosecutor explained why these topics were distractions from the issues before the jury.

Defense counsel later moved for a mistrial. The trial court denied the motion, concluding the prosecutor’s comments did not attack counsel’s integrity or suggest she should not be believed. The court also concluded there had been no miscarriage of justice and defendant had not been denied a fair trial.

“Prosecutorial comment is reversible as misconduct under the federal Constitution when it ‘ “so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process.” ’ ” (People v. Cash (2002) 28 Cal.4th 703, 733.) Conduct that does not render a defendant’s trial fundamentally unfair under the federal Constitution may still constitute prosecutorial misconduct under state law when it involves the use of deceptive or reprehensible methods to persuade the court or the jury. (Ibid.)
“It is misconduct for the prosecutor in argument to impugn the integrity of defense counsel or to suggest defense counsel has fabricated a defense.” (People v. Cash, supra, 28 Cal.4th at p. 732.) “When the prosecution denigrates defense counsel, there is a risk the jury will shift its attention from the evidence to the alleged defense improprieties. [Citations.] … For defendant’s claim to prevail on the merits we ask ‘ “whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” ’ ” (Id. at pp. 732–733.)

“ ‘In conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 667.) “ ‘[T]he prosecutor has wide latitude in describing the deficiencies in opposing counsel’s tactics and factual account.’ ” (People v. Winbush (2017) 2 Cal.5th 402, 484.) Thus, a prosecutor may use colorful language to criticize defense counsel’s tactical approach when the language is not a personal attack on counsel’s integrity. “An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper.” (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47, abrogated on another ground in People v. Merritt (2017) 2 Cal.5th 819, 825–831; People v. Cunningham (2001) 25 Cal.4th 926, 1002 [not misconduct to argue that defense counsel’s job is to “ ‘put up smoke, red herrings’ ”]; People v. Zambrano (2007) 41 Cal.4th 1082, 1154–1155 [not misconduct where defense counsel’s argument was “a ‘lawyer’s game’ and an attempt to confuse the jury by taking the witness’s statement out of context”], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Stitely (2005) 35 Cal.4th 514, 559 [not misconduct to argue jurors should “avoid ‘fall[ing]’ for [defense] counsel’s argument” and should view it as a “ ‘ridiculous’ attempt to allow defendant to ‘walk’ free,” and a “ ‘legal smoke screen’ ”]; People v. Young (2005) 34 Cal.4th 1149, 1193 [not misconduct to characterize defense counsel’s argument as “ ‘idiocy,’ ” as it was fair comment on counsel’s argument]; People v. Taylor (2001) 26 Cal.4th 1155, 1167 [not misconduct to refer to “defense ‘tricks’ or ‘moves’ used to demonstrate a witness’s confusion or uncertainty”]; People v. Medina (1995) 11 Cal.4th 694, 759 [not misconduct to comment that “ ‘any experienced defense attorney can twist a little, poke a little, try to draw some speculation, try to get you to buy something’ ”]; People v. Marquez (1992) 1 Cal.4th 553, 575–576 [not misconduct to refer to a “ ‘heavy, heavy smokescreen that has been laid down [by the defense] to hide the truth’ ”]; People v. Bell (1989) 49 Cal.3d 502, 538 [not misconduct to argue “ ‘[i]t’s [defense counsel’s] job to throw sand in your eyes, and he does a good job of it’ ”]; People v. Williams (1996) 46 Cal.App.4th 1767, 1781 [not misconduct to comment that defense counsel had to “ ‘obscure the truth’ and confuse and distract the jury” and “counsel’s argument was not made in ‘pursuit of the truth’ but was instead meant to ‘deceive,’ ‘distract,’ and ‘confuse’ the jurors”]; People v. Goldberg (1984) 161 Cal.App.3d 170, 190 [not misconduct to say defense counsel’s “job” is to confuse the jury about the issues].) Such comments can be “understood as a reminder to the jury that it should not be distracted from the relevant evidence and inferences that might properly and logically be drawn therefrom.” (People v. Bell, at p. 538.)

We conclude there is no reasonable likelihood the jury took the prosecutor’s argument to impugn defense counsel’s integrity. Rather, the argument was a fair comment on counsel’s tactics. Furthermore, the trial court’s immediate comment that argument is not evidence cured any possible impropriety.

DISPOSITION

The judgment is affirmed.