Filed 11/12/15 P. v. Daly CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066727
Plaintiff and Respondent,
v. (Super. Ct. No. JCF32604)
KENDRICK DALY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Matias R.
Contreras, Judge. Affirmed.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Kendrick Daly was convicted of possessing a dirk or
dagger while a prisoner of the state of California. Defendant is a prisoner at Calipatria
State Prison in Imperial County. During a strip search, defendant removed from his pants
a weapon constructed from plastic sharpened to a point for stabbing attacks. Defendant's prison issued pants had been modified with an additional pocket in the crotch of the
pants. Defendant denied ever having the weapon in his possession and claimed the
modifications made to his pants were for the purpose of smuggling apples out of the
prison cafeteria.
Defendant's counsel has made no argument for reversal but filed a brief pursuant
to People v. Wende (1979) 25 Cal.3d 436 asking that we review the trial record for error.
Pursuant to Anders v. California (1967) 386 U.S. 738, defendant's counsel lists possible
but not arguable issues: (1) Does sufficient evidence exist to prove defendant was in
possession of the dirk/dagger?; (2) Did the court properly deny the defense motion
pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531?; and (3) Did the court
abuse its discretion in not striking the prior strike under People v. Superior Court
(Romero) (1996) 13 Cal.4th 497? We find the trial court did not commit any errors and
affirm the judgment in full.
PROCEDURAL BACKGROUND
The Grand Jury of Imperial County indicted defendant on a charge of possessing a
dirk or dagger in late February 2014. (Pen. Code, § 4502, subd. (a).)1 The People
further alleged that defendant suffered four serious or violent felony priors and that
defendant committed the instant offense while incarnated in a state prison. (§§ 1170.12,
subds. (a)–(d), 667, subds. (b)–(i) & 1170.1, subd. (c).)
An Imperial County jury convicted defendant in early July 2014. The court found
true the allegations that defendant suffered three prior convictions. The court sentenced
1 All further statutory references will be to the Penal Code unless otherwise noted. 2 defendant to the middle term of three years and, based upon the prior strike, doubled his
sentence to six years.
FACTUAL BACKGROUND
Prosecution Evidence
In late May 2013, Sergeant Juan Reyes, a correctional officer at Calipatria State
Prison, received an anonymous note. Acting based upon the contents of the note, Reyes
instructed Officer Espinoza to escort defendant to a holding cell and conduct an
unclothed body inspection of defendant. Defendant was calm and cooperative. Before
defendant entered the cell, Espinoza conducted a visual inspection of the holding cell for
contraband. While Espinoza inspected the cell, defendant stood behind him, un-
handcuffed. Reyes testified that it was standard procedure to handcuff the prisoner while
making a visual inspection of the holding cell. The holding cell had metal mesh walls
that were see-through except for a bottom section that was solid. The mesh walls were
painted in an off-white, beige, or light brown color.
Defendant entered the cell and took off his clothes as instructed by Espinoza.
Espinoza watched defendant lean over his right shoe to untie it while reaching into his
waistband with his left hand, removing an object from his pants, and placing the object
on the ground. Initially, Espinoza did not recognize the object, but he later determined
the object to be a weapon made out of plastic. Espinoza described the weapon as being
six and a half inches long and an inch wide with one end sharpened to a point. The
weapon was white, pink, and brown in color. Its color was similar to the detention cell's
mesh walls.
Upon spotting the object, Espinoza commanded defendant to place his hands
3 through a hole in the cell, allowing Espinoza to handcuff defendant. After handcuffing
defendant, Espinoza entered the cell and retrieved the weapon. Espinoza then continued
the unclothed search of defendant, which included examining defendant's clothes.
Espinoza found defendant's pants had been modified by having a long piece of cloth
sewn into the waistband of defendant's pants, forming a sort of pocket. Espinoza showed
the weapon and altered pants to Reyes approximately two to five minutes after being
ordered to conduct the search. Reyes identified the weapon as one that could cause great
bodily injury or death via a stabbing motion. Reyes also testified that the pocket sewn
into the pants was capable of holding the weapon and most likely designed for that
purpose.
Defense Evidence
Defendant testified that Espinoza patted him down before entering the cell for the
strip search. The pat-down search revealed no contraband. Espinoza did not conduct a
visual inspection of the cell before defendant entered. Once in the cell, Espinoza
instructed defendant to "strip out," and he complied by removing his clothes. Espinoza
searched defendant's clothes and returned them to defendant. Finding nothing in
defendant's clothing, Espinoza opened the cell door to let defendant out. As defendant
was leaving, Espinoza said "what's that" and pointed at an objected sitting in the corner of
the holding cell. The object was the plastic weapon, sitting on its left side standing at a
30–45 degree angle. Defendant denied ever having the weapon in his possession or
having seen it before Espinoza pointed to it.
Defendant acknowledged modifying his pants in violation of prison regulations,
but he denied using the extra pocket to carry a weapon. Instead, defendant claimed he
4 would tie a sock to the extra piece of cloth and fill the sock up with apples. Defendant
testified he would smuggle as many as 10 to 15 apples at a time underneath his clothes.
Defendant has suffered injuries that he claims caused nerve damage to his left arm.
He claims this nerve damage makes it impossible to close his hand and extremely
difficult for him to pick something up with his left hand, such as the weapon.
Rebuttal Evidence
Espinoza testified that he was aware that prisoners smuggle fruit out of the
cafeteria to produce pruno, a type of alcoholic beverage commonly produced by
prisoners. However, he stated that, based upon his experience working as a corrections
officer, it would be impossible for an inmate to smuggle as much fruit under his clothes
as defendant claimed without being noticed by corrections officers. Espinoza denied
conducting a pat-down search of defendant prior to the strip search. He also testified that
he had never seen a modification to the pants such as defendant made used to smuggle
fruit, but based upon his training he knew such modifications to clothing were commonly
used to conceal weapons. While observing defendant in court, Espinoza saw defendant
pick up a piece of paper with his left hand.
DISCUSSION
Defendant's counsel has failed to find any grounds for reversible error and has
filed a brief pursuant to People v Wende, laying out the factual and procedural history of
the case and requesting that the court review the record for any reversible error it may
have missed. Defendant has had the opportunity to provide us with supplemental
briefing, but he has apparently declined to do so. Pursuant to Anders v. California, supra,
386 U.S. 738, defendant's counsel has provided us with possible but not arguable issues
5 that we address below.
A. Sufficiency of the Evidence that Defendant Possessed a Dirk or Dagger
When a defendant challenges the sufficiency of the evidence presented at trial, the
appellate court must review the record "to determine whether it contains substantial
evidence—i.e., evidence that is credible and of solid value—from which a rational trier of
fact could have found the defendant guilty beyond a reasonable doubt." (People v. Green
(1980) 27 Cal.3d 1, 55.) The reviewing court must "presume in support of the judgment
the existence of every fact the trier of fact reasonably could infer from the evidence.
[Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of
the judgment is not warranted simply because the circumstances might also reasonably be
reconciled with a contrary finding." (People v. Lindberg (2008) 45 Cal.4th 1, 27.) The
testimony of a single witness is sufficient to prove any fact in dispute. (Evid. Code,
§ 411.) " '[N]either conflicts in the evidence nor " 'testimony which is subject to
justifiable suspicion . . . justif[ies] the reversal of a judgment, for it is the exclusive
province of the [trier of fact] to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends.' " [Citations.] Testimony may
be rejected only when it is inherently improbable or incredible, i.e., ' "unbelievable per
se," ' physically impossible or ' "wholly unacceptable to reasonable minds." ' [Citation.]"
(Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 1150, 1155.)
Section 4502 prohibits prisoners from possessing or carrying any weapons
including "any dirk or dagger or sharp instrument." The trial record reveals sufficient
evidence to support conviction. The jury heard testimony that a corrections officer
witnessed defendant remove an object from his pants during a strip search, that the object
6 turned out to be a plastic object with a sharpened end, that this object was a weapon
capable of causing great bodily injury or death, that the cell where defendant was strip
searched was visually inspected by the officer for contraband before defendant was
searched, and that defendant's pants contained a modification that would allow him to
hide the object on his person. Defendant offered his own testimony that contradicted
much of the testimony from the state witness, but the assessment of a witness's credibility
is generally up to the jury and not the reviewing court. It is only when the testimony
relied upon by a finder of fact is inherently improbable or fantastical that a reviewing
court may reverse. Here, the testimony of the prosecution's witnesses describes events
that are at the very least plausible, and the jury's reliance on the testimony certainly does
not justify reversal of defendant's conviction. From the evidence presented at trial, the
jury reasonably found that defendant had a "dirk or dagger or sharp instrument" in his
possession.
B. Denial of Pitchess2 Motion
Defendant filed a Pitchess motion with the trial court, requesting the production of
any personnel records regarding Officer Espinoza from the Department of Corrections
and Rehabilitation that could show Espinoza had a history of using excessive force,
falsifying evidence or making false reports. A pretrial hearing was held in late May
2014. At the hearing, declarations stating that the Department of Corrections and
Rehabilitation (with the exception of one file) had no records containing evidence
relevant to defendant's request were received by the court. One file, a claim by an inmate
2 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). 7 claiming that a corrections officer harassed him by improperly ordering and conducting a
search of the inmate's cell and person was given to the court and examined in camera.
The file related that Officer Espinosa had been interviewed as a witness because he
participated in the disputed search on the orders of another corrections officer, but the
inmate complaint was not directed against Espinoza and the inmate reported that
Espinoza treated him professionally. Espinoza reported that while in his presence, the
subject of the complaint behaved professionally toward the inmate. The court concluded
the document was not discoverable for the purpose of showing that Espinoza has a
history of falsifying evidence.
"Pitchess, supra, 11 Cal.3d 531, and its statutory progeny are based on the premise
that evidence contained in a law enforcement officer's personnel file may be relevant to
an accused's criminal defense and that to withhold such relevant evidence from the
defendant would violate the accused's due process right to a fair trial. Pitchess and
Evidence Code sections 1043 through 1047 also recognize that the officer in question has
a strong privacy interest in his or her personnel records and that such records should not
be disclosed unnecessarily. Accordingly, both Pitchess and the statutory scheme
codifying Pitchess require the intervention of a neutral trial judge, who examines the
personnel records in camera, away from the eyes of either party, and orders disclosed to
the defendant only those records that are found both relevant and otherwise in
compliance with statutory limitations. In this manner, the Legislature has attempted to
protect the defendant's right to a fair trial and the officer's interest in privacy to the fullest
extent possible. [Citation.]" (People v. Mooc (2001) 26 Cal.4th 1216, 1227.) The
custodian of records is only required to hand over documents from the personnel files that
8 are potentially relevant to the proceedings. (Id. at pp. 1228-1229.)
" 'Relevant evidence' means evidence . . . having any tendency in reason to prove
or disprove any disputed fact that is of consequence to the determination of the action."
(Evid. Code, § 210.) "[O]nly documentation of past officer misconduct which is similar
to the misconduct alleged by defendant in the pendinglitigation is relevant and therefore
subject to discovery." (California Highway Patrol v. Superior Court (2000) 84
Cal.App.4th 1010, 1021.) In a case where accounts of the defendant and law
enforcement officers differ, past complaints alleging falsification of evidence or
falsification of reports would be relevant and may be discoverable. (People v. Hustead
(1999) 74 Cal.App.4th 410, 418.) "A trial court's decision on the discoverability of
material in police personnel files is reviewable under an abuse of discretion standard."
(People v. Jackson (1996) 13 Cal.4th 1164, 1220.) Abuse of discretion by the court may
be demonstrated by showing the ruling was " 'arbitrary, capricious or exceeds the bounds
of reason.' " (People v. Martinez (2014) 226 Cal.App.4th 759, 764.)
We find the court acted within its discretion. The custodian of records produced
for the court only one file that was potentially relevant. This document did not contain
any claims made against either Vazquez or Espinoza. Indeed, the inmate who made the
complaint claimed Espinoza behaved professionally towards him. The inmate and
Espinoza did differ in their opinions as to whether the subject of the complaint behaved
appropriately toward the inmate, but the inmate did not make any accusations against
Espinoza of falsifying reports or evidence. An argument could be made that the
document was relevant as evidence of Espinoza falsifying evidence as his account of
events differed slightly from the inmate's. However, given the lack of any claim of
9 falsification made by the complaining inmate, the lack of any other claims against
Espinoza himself, and the privacy interest of Espinoza, the complaining inmate, and the
subject of the complaint, we find the court acted within the bounds of its discretion in
finding that the document was not discoverable.
C. Refusal of Court to Strike Prior Conviction Under People v. Superior Court
(Romero)
1. Relevant Facts
Defendant was convicted of attempted murder, mayhem, and assault with a deadly
weapon in the Los Angeles County Superior Court in September 2008. At the trial for
the 2014 weapon possession charge, defendant's counsel requested the court on its own
motion dismiss the allegation of the prior felonies as per People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero). Counsel filed a memorandum of points and
authorities in support of his request. In the memorandum, counsel argued that defendant
did not deserve the prior felony sentence enhancement because while defendant's latest
offense was a felony, it was nonviolent and bore no financial cost to anyone. Counsel
argued that defendant was not a career criminal as the 2008 felony convictions were the
only convictions on his record prior to 2014. Defendant's counsel also pointed to
defendant's cooperation with police, corrections officials, and the courts as evidence that
defendant did not deserve the enhanced sentence.
At the sentencing hearing, the court concluded that the enhancing and mitigating
factors essentially cancelled each other out and sentenced defendant to the midterm of
three years imprisonment for the weapons possession charge. With respect to the prior
felony enhancement, the court found that dismissing the allegations under a Romero
10 motion would be improper.
The court stated: "What I do is I start with the actual felonies that he was
convicted of initially. Now, that is attempted murder, 245 and 203, very serious offenses
and violence involved, threats of violence. What is this offense? This offense is carrying
a deadly weapon with some sophistication. That was the one aggravating thing. So there
is sophistication planned, carrying a deadly weapon. The initial crimes were violent
crimes, attempted murder, 245, 203. If this was a possession of marijuana in jail or
prison, [Deputy District Attorney] Ms. Cavil, I think that, you know, that might warrant a
Romero, but it's not. . . . This doesn't take him, I don't think, outside the scheme's spirit
in whole or in part." Declining to dismiss the allegations of prior violent felonies, the
court doubled defendant's three year sentence to six years of imprisonment to be served
consecutively to defendant's 2008 sentence.
2. Relevant Law
California's three strikes sentencing scheme provides for enhanced sentences for
felons who have previously committed a felony defined as being either "violent" or
"serious." (Romero, supra, 13 Cal.4th at pp. 504-506.) Section 1385 permits a judge to
order an action dismissed " 'either of his or her own motion or upon the application of the
prosecuting attorney.' " (Romero, at pp. 507-508.) Our state high court has construed
section 1385 "as permitting a judge to dismiss not only an entire case, but also a part
thereof, including the allegation that a defendant has previously been convicted of a
felony." (Romero, at p. 508.) Dismissing the allegation of a previous conviction does not
undo the actual conviction but simply allows the court to avoid applying the enhancement
that would otherwise be required by statute. (Ibid.)
11 California's three strikes law consists of two mostly identical statutes, one passed
by the Legislature (§ 667, subds. (b)–(i)), and another passed subsequently through ballot
initiative (§ 1170.12). (Romero, supra, 13 Cal.4th at p. 504.) Both statutes provide that
"[t]he prosecuting attorney may move to dismiss or strike a prior felony conviction
allegation in the furtherance of justice pursuant to Section 1385." (Id. at p. 508.) Our
state high court has construed the statutes as allowing a judge to dismiss a prior serious or
violent felony conviction allegation on his or her own motion in the interest of justice.
(Id. at pp. 529-530.)
A trial court's decision regarding dismissal of allegations of a prior felony is
reviewed for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 531.) "The trial
court's power to dismiss an action under section 1385, while broad, is by no means
absolute. Rather, it is limited by the amorphous concept which requires that the dismissal
be 'in furtherance of justice.' As the Legislature has provided no statutory definition of
this expression, appellate courts have been faced with the task of establishing the
boundaries of the judicial power conferred by the statute as cases have arisen challenging
its exercise. Thus, in measuring the propriety of the court's action in the instant case, we
are guided by a large body of useful precedent which gives form to the above concept.
[¶] From the case law, several general principles emerge. Paramount among them is the
rule 'that the language of that section, "furtherance of justice," requires consideration both
of the constitutional rights of the defendant, and the interests of society represented by
the People, in determining whether there should be a dismissal. [Citations.]' [Citations.]
At the very least, the reason for dismissal must be 'that which would motivate a
reasonable judge.' [Citations.]" (People v. Orin (1975) 13 Cal.3d 937, 945-946.)
12 "From these general principles it follows that a court abuses its discretion if it
dismisses a case, or strikes a sentencing allegation, solely 'to accommodate judicial
convenience or because of court congestion.' [Citation.] A court also abuses its
discretion by dismissing a case, or a sentencing allegation, simply because a defendant
pleads guilty. [Citation.] Nor would a court act properly if 'guided solely by a personal
antipathy for the effect that the three strikes law would have on [a] defendant,' while
ignoring 'defendant's background,' 'the nature of his present offenses,' and other
'individualized considerations.' [Citation.] " (Romero, supra, 13 Cal.4th at p. 531.)
"[I]n ruling whether to strike or vacate a prior serious and/or violent felony
conviction allegation or finding under the Three Strikes law, on its own motion, 'in
furtherance of justice' pursuant to Penal Code section 1385(a), or in reviewing such a
ruling, the court in question must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme's spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious and/or violent
felonies. If it is striking or vacating an allegation or finding, it must set forth its reasons
in an order entered on the minutes, and if it is reviewing the striking or vacating of such
allegation or finding, it must pass on the reasons so set forth." (People v. Williams (1998)
17 Cal.4th 148, 161.)
3. Discussion
Case law requires a trial court to weigh the interest of society in incarcerating the
defendant versus the interest of the defendant's constitutional rights by considering
13 whether the overall circumstances of the defendant's crimes fall outside the spirit of the
three strikes sentencing scheme. The trial court in this case evaluated defendant's history
and concluded that his crimes were of the type that the three strikes sentencing scheme is
designed to punish. The court was correct and acted within the bounds of its discretion.
Defendant was previously convicted of attempted murder and related charges.
Though defendant's most recent conviction did not arise from an act of violence, it did
arise from defendant carrying and perhaps manufacturing a deadly weapon while
incarcerated. A weapon that if used would likely have resulted in the imposition of
charges similar to those defendant was convicted of in 1998. Given the clear similarity in
the nature of the 1998 and 2014 convictions, the court was correct to find that defendant's
convictions fit into a pattern of violent or serious criminal behavior of the kind the three
strikes sentencing scheme is designed to punish. In these circumstances, the interest of
justice did not require the trial court to dismiss the allegations that defendant had
committed previous felonies.
DISPOSITION
The judgment of the trial court is affirmed.
BENKE, Acting P. J. WE CONCUR:
HUFFMAN, J.
IRION, J.