Filed 9/4/15 P. v. Duclos CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D065591
Plaintiff and Respondent,
v. (Super. Ct. No. SCD246946)
McGHEE DUCLOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Charles G.
Rogers, Judge. Affirmed.
Law Offices of Kurt David Hermansen and Kurt David Hermansen, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J.
Beale, Deputy Attorneys General for Plaintiff and Respondent. I.
INTRODUCTION
The People charged McGhee Duclos with carjacking (Pen. Code, § 215, subd. (a))
(count 1)1 and robbery (§ 211) (count 2), and alleged that Duclos used a deadly and
dangerous weapon during the commission of both offenses (§ 12022, subd. (b)(1)). The
People further alleged that Duclos had suffered one prison prior (§ 667.5, subd. (b)), two
serious felony priors (§ 667, subd. (a)(1)), and five strike priors (§ 667, subds. (b)-(i)).
During a jury trial, Duclos presented the defense that he was not guilty of the charged
offenses because he was legally unconscious while committing the acts comprising the
offenses. The jury found Duclos guilty on all counts, and found true the weapon
enhancement allegations. The trial court sentenced Duclos to an aggregate term of 36
years to life in prison.
On appeal, Duclos contends that the trial court abused its discretion in excluding
certain evidence related to his unconsciousness defense pursuant to Evidence Code
section 352, and that the court's ruling violated his constitutional rights to due process
and to present a defense. Duclos also claims that the trial court erred in instructing the
jury pursuant to the standard CALCRIM instruction on unconsciousness because the
instruction purportedly improperly lessened the prosecution's burden of proving every
1 Unless otherwise specified, all subsequent statutory references are to the Penal Code.
2 element of the charged offenses beyond a reasonable doubt. Finally, Duclos claims that
the trial court erred in failing to exclude from evidence a photograph found on his cell
phone after his arrest because the search of the phone was conducted without a warrant.
We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The prosecution's evidence
On an evening in March 2013, Katie Preman drove her Jaguar to a shopping mall.
After parking her car, Preman popped open the trunk and got out of the car. Preman
realized that she had left $10 on the seat of the car, and she reached down and picked up
the money.
Duclos approached Preman with a gun2 and told her to put her purse down and to
place her keys on the driver's seat. Duclos came within one or two feet of Preman.
Preman put her purse on the driver's seat. Duclos took the car keys and the $10 from
Preman, told her to back away, and got into her car.
Duclos backed up the car and the trunk popped open. Duclos stopped the car, got
out, and closed the trunk. Preman screamed at Duclos to return her belongings. Duclos
pointed the gun at Preman, got back into the car, and sped off. According to Preman,
during the encounter, Duclos appeared "very serious and very organized." Inside the
Jaguar were Preman's iPhone, her purse, and a pair of diamond earrings.
2 Police later determined that the gun was a BB gun. 3 As Duclos drove off, Preman began screaming for help. A woman heard Preman's
screams and called 911. A responding police officer allowed Preman to use his iPhone to
track the location of Preman's iPhone. Additional police units responded to the location
at which Preman's iPhone had been detected. At that location the officers saw a car
matching the description of Preman's Jaguar.
A short time later, a police officer saw Duclos walking away from the Jaguar. The
officer stopped Duclos at gunpoint. Duclos dropped the iPhone and car key and put his
hands in the air. An officer recovered a BB gun from Duclos's waistband. Preman later
identified Duclos at a curbside lineup.
Police transported Duclos to the police station. Once there, police searched
Duclos and found cash, earrings, and Preman's credit cards and identification. Police also
searched Duclos's cell phone and discovered a photograph of the BB gun that officers had
found in Duclos's waistband.
San Diego Police Detective John Smith interrogated Duclos. Duclos
acknowledged having taken Preman's car, and provided several details concerning the
incident. For example, Duclos stated that he obtained the BB gun from his brother's
room and had taken a bus to the mall. According to Smith, Duclos also stated that he saw
"the blonde lady in the car, with her purse open, counting money, and he decided to take
her car and money." Smith stated that Duclos's answers were responsive and "made
perfect sense."
4 B. The defense
Duclos presented evidence that he committed the acts comprising the offenses
while in a dissociative fugue state. (See part III.A.2.e., post.) According to a defense
expert, a person suffering from a fugue state may commit acts that appear to be
purposeful without actually being conscious.
C. Rebuttal evidence
Three women testified that Duclos had robbed each of them during three separate
robberies in 2006. In addition, Francisco Ramirez, a former San Diego police officer,
testified concerning Duclos's commission of a robbery in 2003. According to Ramirez,
during a police interview, Duclos initially denied committing the robbery, but
subsequently admitting having robbed the victim after Ramirez told Duclos that
witnesses had identified him.
III.
DISCUSSION
A. The trial court did not abuse its discretion in limiting the presentation of evidence related to Duclos's unconsciousness defense pursuant to Evidence Code section 352; the court's ruling did not violate Duclos's constitutional rights
Duclos contends that the trial court abused its discretion in excluding certain
evidence of his unconsciousness defense pursuant to Evidence Code section 352.
Specifically, Duclos contends that the court abused its discretion in precluding him from
presenting testimony concerning recent seizures that he suffered while he was
5 incarcerated, and from showing the jury a video taken prior to trial while he was
incarcerated for the charged offenses, during which he appears to be having a seizure.
We review this contention pursuant to the abuse of discretion standard of review.
(See People v. Guerra (2006) 37 Cal.4th 1067, 1113 [abuse of discretion standard of
review applies to any ruling by a trial court concerning the admissibility of evidence and
is particularly appropriate for questions concerning Evidence Code section 352].)
Duclos also claims that the trial court's ruling excluding this evidence amounted to
a deprivation of his constitutional rights to due process and to present a defense. We
assume for purposes of this decision that the de novo standard of review applies in
determining whether the court's exclusion of the evidence violated Duclos's constitutional
rights. (See People v. Seijas (2005) 36 Cal.4th 291, 304 [stating "independent review
'comports with this court's usual practice for review of mixed question determinations
affecting constitutional rights' "].)
1. Governing law
a. Evidence Code section 352
Evidence Code section 352 provides:
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
6 b. A defendant's due process right to a fair trial and right to present a defense
A defendant has the general right to offer a defense through the testimony of his or
her witnesses. (Washington v. Texas (1967) 388 U.S. 14, 19.) Thus, the California
Supreme Court has recognized that " 'Evidence Code section 352 must bow to the due
process right of a defendant to a fair trial and to his right to present all relevant evidence
of significant probative value to his defense.' " (People v. Babbitt (1988) 45 Cal.3d 660,
684 (Babbitt).) The Babbitt court emphasized, " 'We do not mean to imply, however, that
a defendant has a constitutional right to present all relevant evidence in his favor, no
matter how limited in probative value such evidence will be so as to preclude the trial
court from using Evidence Code section 352.' " (Ibid.)
" 'As a general matter, the ordinary rules of evidence do not impermissibly
infringe on the accused's right to present a defense.' " (People v. Blacksher (2011) 52
Cal.4th 769, 821.) Thus, "although the complete exclusion of evidence intended to
establish an accused's defense may impair his or her right to due process of law, the
exclusion of defense evidence on a minor or subsidiary point does not interfere with that
constitutional right." (People v. Cunningham (2001) 25 Cal.4th 926, 999.)
7 2. Factual and procedural background
a. Duclos's motion in limine
Prior to trial, Duclos filed a motion in limine in which he requested permission to
present evidence at trial tending to demonstrate that he was in a dissociative fugue state
and thus legally unconsciousness at the time of the charged offenses. Specifically,
Duclos sought to present expert testimony concerning this issue, percipient testimony
from his parents concerning prior dissociative episodes, and his own testimony that he
lacked any memory of committing the offenses. Duclos also contended that "medical
doctors, nurses, and deputy sheriffs[3] could testify about [his] suffering what absolutely
appear[] to be . . . seizures that have resulted in him being and still being prescribed anti-
epilepsy medications." Duclos also requested permission to show a video lasting
approximately one minute in length taken while he was in jail in which he appears to be
having a seizure.
b. The initial hearing on Duclos's motion to introduce evidence related to dissociative fugue
The trial court held a hearing on Duclos's motion. Defense counsel argued that
whether Duclos had a "desire to commit the acts and any memory of committing the acts
would go to whether or not he had [the] specific intent to commit the charged offenses."
Counsel explained further that Duclos would testify that he had no such desire or
memory. Defense counsel also indicated that Dr. Raymond Murphy, a psychologist,
3 It is clear from the remainder of the record that these witnesses interacted with Duclos while he was incarcerated awaiting trial. 8 would testify that he had conducted an investigation concerning Duclos's statements that
he had committed the acts comprising the charged offenses while in a dissociative fugue
state. As a component of his investigation, Dr. Murphy reviewed a report authored by a
neurologist, Dr. Frederic Martin, who had examined Duclos and determined that there
was no organic neurological basis for Duclos's apparent lack of memory concerning his
commission of the acts in question. Counsel explained that Dr. Murphy would testify
that Duclos's actions were consistent with those of a person acting in a dissociative fugue
state.
Defense counsel also stated that Duclos's family could testify that they had
witnessed numerous episodes during which Duclos had engaged in what appeared to be
purposive actions and later had no recollection of having committed the acts. Defense
counsel further stated that Duclos's family could also testify that, since he was a child,
Duclos had suffered what had been diagnosed as "partial complex seizures." Defense
counsel added that Duclos had been on "anti-epilepsy medication" for most of his life. In
explaining the relevance of evidence concerning these seizures, defense counsel stated:
"Now, the court could very well ask, well, the fact that he may have suffered seizures, which were followed by some period of confusion, how does that relate to a dissociative fugue? [¶] And so I am talking about two different aspects of the psychiatric disorder. One is the dissociative-fugue episodes when he acts purposefully, doesn't recall. That is what Dr. Murphy can explain is an actual psychiatric phenomenon. Separately from that, but really related, is the fact that he has suffered seizure in the past, or what appears to be seizures, and that the medical establishment has also characterized as being partial complex seizures . . . ."
9 Defense counsel continued by stating that it was the defense's belief that the
seizures were "part and parcel of a complicated psychiatric disease," and that the
"medical professionals, nurses and doctors . . . [could] testify that Mr. Duclos . . .
suffered what was described or perceived to be seizures, lack of memory, [and]
confusion." Defense counsel explained that the jail video would depict Duclos "covered
with blood" and "disoriented." Counsel continued by stating that the video showed
Duclos "not following directions," and that he would "sit down and stand up and sit down
again," before eventually appearing to be "startled" and "attacking the deputies." After
the deputies restrained Duclos, he appeared to be startled again and began to ask the
deputies what had just happened.
The prosecutor objected to the presentation of evidence that Duclos had suffered
seizures in the past on the ground that there was "no evidence in this case of any kind of
seizure activity" occurring at the time he committed the charged crimes. The prosecutor
argued that Duclos's actions in stealing his brother's BB gun, taking a bus across town,
committing a robbery and carjacking, and driving away constituted purposeful action.
However, the prosecutor acknowledged that the defense should be allowed to present
expert testimony concerning the mental state of dissociative fugue.
The court agreed that the defense should be permitted to present evidence that
Duclos committed the charged offenses while legally unconscious. However, the court
stated that it did not understand "how these things that have been described as seizures
relate to the dissociative-fugue state." The court indicated that it would need a further
10 proffer of evidence concerning this issue or testimony from Dr. Murphy establishing the
relevance of the seizure evidence.
Defense counsel agreed that "it is not readily apparent how . . . Dr. Murphy can
connect what has been described by the medical establishment as seizure or seizure-like
activity with a dissociative fugue, other than saying that he believes that both are
psychogenic in nature." Defense counsel requested that the court reserve judgment on
this issue in order to allow counsel to make a more specific proffer concerning the
relevance of the seizure evidence. The court agreed to reserve making a final ruling on
the admissibility of the evidence.
c. The continued hearing on Duclos's motion to introduce evidence related to dissociative fugue state
The following day, defense counsel made an additional offer of proof regarding
the evidence that she wanted to present concerning Duclos's mental state at the time of
the charged offenses. Defense counsel explained that she had spoken with Dr. Murphy
and Dr. Martin. Dr. Martin informed defense counsel that Duclos's alleged actions in
committing the charged offenses were not explainable as having occurred as the result of
a partial complex seizure. However, Dr. Martin explained that the actions could be
explained by a psychiatric diagnosis. Defense counsel stated that Dr. Murphy could
provide that diagnosis.
Notwithstanding Dr. Martin's testimony that the seizures Duclos claimed to have
suffered did not explain Duclos's conduct, defense counsel stated that, according to
11 Dr. Martin, Duclos might in fact suffer from such seizures. Defense counsel further
stated that if Dr. Martin were permitted to explain the basis for his opinion that Duclos
might suffer from such seizures, the presentation of a considerable amount of other
testimony could be avoided:
"If [Dr. Martin] is allowed to explain that as a basis for his opinions, that, in fact, [Duclos] may suffer from partial complex seizures because of the long, documented medical history, during which he was documented as suffering from partial complex seizures or suspected ones, then that would, I believe, negate the need for the defense to call witnesses. We have discussed how there [are] many witnesses, the medical doctors, the deputy sheriffs, the nurses in the jail, who would testify that he had what appeared to be seizures, that were treated as though he had seizures. He is known in the jail as someone who is at risk for seizures. If Dr. Martin was to explain what he relied upon, what he reviewed, what his opinions are, . . . then I believe it would not be necessary to call all those witnesses, because they would merely be establishing what Dr. Martin would be testifying to, which is that there has been a long diagnosis, a lengthy medical history of treating Mr. Duclos for seizures . . . ."
Defense counsel also indicated that Dr. Murphy would testify that "what has been
described by Mr. Duclos and described by his family as seizures are very likely to have
been actually descriptions of fugue dissociative states."
d. The court's ruling
After hearing defense counsel's proffer, the court stated that it understood that
Dr. Murphy would testify that Duclos had exhibited symptoms of a dissociative fugue
state and that his history of prior seizures tended to support this conclusion. The court
indicated that this testimony was relevant "subject to [Evidence Code] section 352." The
court then stated:
12 "It seems to me that the fact that emerges from Dr. Martin and from the medical records is that this man has been diagnosed with seizures. I don't even think that the People would say that's not true. I don't think that the People have a way of proving that he has not been diagnosed with seizures. I think it's also . . . not really disputable that he's been given seizure medication for it, or anti- seizure medication. [¶] Now, I think those two facts, that he's been diagnosed and he's been given medication for years, are relevant and admissible and may be testified to from review of the medical records. What I am not going to allow, either by live witnesses or from medical records, is all the evidence that supports these two facts."
After further explanation of its ruling, the trial court continued:
"So, bottom line, I am not going to allow all the evidentiary details that support the diagnostic conclusion that the doctors, since time immemorial in this case, have been saying the man has seizures, and he's been given medication for it. The evidence of the jail video, that's out. The family testimony, the parade of horribles, I think that is unduly time consuming, unduly prejudicial, evokes too much sympathy, takes a lot of time, is confusing. But the fact that he has been diagnosed, the fact that he's been medicated, that comes in."
After the court issued its ruling, defense counsel stated that she understood that the
jail video would be excluded and that "medical doctors, deputy sheriffs, or nurses in the
jail who witnessed or treated Mr. Duclos for what appeared to be seizure episodes,"
would not be permitted to testify. Defense counsel requested that Duclos's family
members be permitted to testify that "they had observed him engage in purposeful
activity and afterwards [he] expressed that he had no memory of it." The court ruled that
the defense would be permitted to present this testimony.
13 e. Evidence presented at trial
Duclos testified that he had no recollection of committing the charged offenses,
and that he had suffered episodes of amnesia nearly his entire life. Duclos also stated that
he started having "seizures" after hitting his head on the edge of a swimming pool when
he was nine years old. Duclos explained that he started taking anti-seizure medication
when he was 12 or 13 years old, but that he continued to experience seizures. In addition,
since he was approximately 13 or 14 years old, Duclos began engaging in seemingly
purposeful acts of which he had no memory afterward. As he grew older, Duclos
committed acts that served as the basis for several criminal convictions, including
convictions for grand theft and attempted robbery, of which he had no memory.
Duclos's parents testified that when Duclos was a child, they saw him suffer what
appeared to be seizures during which he would bite his tongue and/or lose control of his
bladder. They also described instances during which Duclos would perform seemingly
purposive actions and afterward have no memory of having performed the actions.
Dr. Martin testified that there are two types of neurologically based seizures.
Grand mal seizures are characterized by dramatic physical convulsions. Complex partial
seizures are characterized by sudden unresponsive states, mumbling, lip smacking or
chewing, and brief moments of disorientation. Both types of seizures are followed by
periods of confusion. Dr. Martin reviewed Duclos's medical history, which revealed that
he had a "diagnosis of seizures" since his childhood, and that he had been treated with
anticonvulsant medications. However, Dr. Martin explained that Duclos might suffer from
14 psychogenic seizures because tests demonstrated no neurological basis for the seizures and
it appeared from medical reports that, after some of the seizures, Duclos had not suffered a
period of confusion.
Dr. Murphy testified that he had diagnosed Duclos as suffering from a
"dissociative disorder." Dr. Murphy explained that, when in a dissociative fugue state, a
person can appear to be conscious and acting purposefully but not in fact be conscious of
his actions. Dr. Murphy stated that, according to Duclos, Duclos had long suffered from
fugue states during which he performed tasks and later had no memory of having
performed the tasks. Based on the facts of the charged offense, Dr. Murphy explained
that Duclos's reported experience would "be consistent with a dissociative state."
3. Application
a. The trial court did not abuse its discretion in limiting Duclos's presentation of evidence that he had recently suffered seizures
Duclos contends that the trial court abused its discretion by "precluding [him]
from presenting evidence of his most recent dissociative episodes." We are not
persuaded.
Most importantly, the evidence that the trial court prevented Duclos from
presenting was evidence of his suffering what appeared to be "seizures" during which he
appeared not to be acting purposively. Thus, the evidence that the trial court excluded
was not direct evidence of Duclos having been in a fugue state during which he appeared
to be conscious and acting purposefully but was not in fact conscious of his actions.
15 Accordingly, the excluded evidence was, at best, marginally probative with respect to
whether Duclos was in a fugue state at the time he engaged in the lengthy set of
seemingly purposive acts that comprised the charged offenses, including committing the
carjacking and robbery and driving away from the scene of the crimes.
Moreover, as the trial court noted, it was undisputed that Duclos had a long history
of having suffered seizure-type symptoms. While Duclos contends that the evidence of
the recent seizure episodes was "highly probative," defense counsel acknowledged in the
trial court that this evidence would "not be necessary" to the extent that Dr. Martin was
allowed to explain the basis for his opinion that Duclos might suffer from partial complex
seizures. At the hearing on the in limine motion, the trial court ruled that Dr. Martin
would be permitted to testify at trial as to the basis for his opinion that Duclos may have
suffered from such seizures, and Dr. Martin provided testimony concerning this issue at
trial.4
Further, Duclos was permitted to present considerable evidence through his own
testimony, that of his parents, and also the testimony of two experts concerning his long
history of having suffered seizures. Under these circumstances, the trial court acted well
within its discretion in determining that it would be "unduly time consuming" for the
defense to present the testimony of numerous additional witnesses on this issue.
4 For example, Dr. Martin explained that it was his impression that Duclos might have suffered from partial complex seizures "on the basis of his mother's reporting that he occasionally mumbled and stared off into space." 16 We are not persuaded by Duclos's contention that the trial court abused its
discretion in considering the amount of time that it would take to present the evidence he
proffered, because the court permitted the People to present evidence of Duclos's
commission of numerous uncharged offenses. In making this argument, Duclos posits a
false equivalency. The prosecution's evidence of uncharged offenses was admissible
both to rebut Duclos's defense that he was unconscious at the time of the charged offense
and to impeach his credibility.5 The trial court did not abuse its discretion in determining
that the probative value of this evidence justified the time that it would take to present.
The trial court was not required to permit the defense to present marginally probative,
and largely cumulative, testimony, simply because it permitted the People to present
evidence of Duclos's commission of uncharged crimes.
We also reject Duclos's contention that the trial court abused its discretion in
expressing its concern that showing the video of Duclos in jail might improperly evoke
sympathy or confusion among the jurors. According to defense counsel's description of
the video during in limine proceedings, the video depicted Duclos in a custodial setting,
"covered with blood" and "disoriented." The trial court did not abuse its discretion in
determining that the potential prejudice from showing the jury this video substantially
outweighed the minimal probative value that a showing might have had.
We further reject Duclos's contention that, pursuant to this court's decision in
People v. Diaz (2014) 227 Cal.App.4th 362, the trial court erred in failing to view the jail
5 Duclos does not contend otherwise on appeal. 17 video prior to ruling on its admissibility. As we made clear in People v. Diaz, a "trial
court may rely on an offer of proof in considering whether to permit [the] jury to view a
video at trial." (Id. at p. 379, fn. 11, citing People v. Holford (2012) 203 Cal.App.4th
155, 174.) In People v. Diaz, we concluded that the trial court erred in failing to view the
videos at issue in that case before permitting them to be shown at trial because the
People's offer of proof, which included the transcripts of the videos, "should have alerted
the court to the potential for extreme prejudice if the jury were to be shown the videos."
(People v. Diaz, supra, at p. 379.) In contrast, in this case, there was nothing in defense
counsel's offer of proof that suggested a need for the trial court to view the actual video
before ruling on its admissibility.
Finally, this case is entirely distinguishable from People v. Cortes (2011) 192
Cal.App.4th 873 (Cortes), upon which Duclos heavily relies. In Cortes, the trial court
ruled that the defense's psychiatric expert "could testify about dissociation and
posttraumatic stress disorder in general, but could not testify about defendant's mental
condition at all." (Id. at p. 891.) In contrast, in this case, both Dr. Martin and
Dr. Murphy testified extensively about Duclos's mental condition, including Dr. Murphy
testifying that he had diagnosed Duclos as having a "dissociative disorder." The minor
limitation that the trial court imposed on the defense's presentation of evidence
concerning Duclos's seizures is in no way comparable to the wholesale exclusion of
defense evidence concerning the defendant's mental state at issue in Cortes. (See ibid.;
18 see also id. at pp. 899-900 [listing numerous restrictions on the defense expert's proffered
testimony].)
Accordingly, we conclude that the trial court did not abuse its discretion in
limiting the presentation of evidence related to Duclos's unconsciousness defense
pursuant to Evidence Code section 352.
b. The trial court did not violate Duclos's constitutional rights by limiting the presentation of evidence related to his unconsciousness defense
As discussed above, the trial court permitted Duclos to present extensive evidence
in support of his defense that he was in a dissociative fugue state at the time he
committed the acts comprising the charged offenses, including his own testimony, the
testimony of his parents, and that of two experts. Importantly, the trial court allowed
Duclos and his parents to testify about his prior commission of acts during which he
appeared to be acting purposively but later did not remember. The court also permitted
Dr. Murphy to testify that he had diagnosed Duclos as suffering from a dissociative
disorder and that Duclos's acts on the day of the charged offenses were consistent with
those of a person acting in a dissociative fugue state. In addition, for the reasons stated
above, the evidence that the trial court did prevent Duclos from presenting was not highly
probative. Under these circumstances, the trial court's evidentiary rulings did not violate
Duclos's constitutional right to present a defense. (See People v. Boyette (2002) 29
Cal.4th 381, 428 [" 'Although completely excluding evidence of an accused's defense
19 theoretically could rise to this level, excluding defense evidence on a minor or subsidiary
point does not impair an accused's due process right to present a defense.' "].)
With respect to Duclos's contention that the trial court violated his right to due
process in allowing the prosecution to present evidence of his commission of uncharged
crimes while preventing Duclos from presenting additional evidence of his suffering from
seizures, we are not persuaded that principles of due process enunciated Green v.
Georgia (1979) 442 U.S. 95 (Green) mandate that the trial court permit the defense to
present the marginally probative evidence of Duclos's seizures in light of the trial court's
admission of the evidence of his uncharged crimes. In Green, the United States Supreme
Court concluded that the due process clause of the fourteenth amendment required that a
defendant on trial for a capital crime be permitted to present evidence of his accomplice's
admission that the accomplice committed the murder underlying the defendant's capital
charge, notwithstanding that the proffered evidence was inadmissible under state law as
hearsay. In support of its ruling, the Green court reasoned that the evidence was "highly
relevant to a critical issue" in a capital case and that "the State considered the testimony
sufficiently reliable to use it against [the accomplice in his separate trial], and to base a
sentence of death upon it." (Id. at p. 97.) In this case, the excluded evidence was
marginally probative, and the trial court's exclusion of that evidence, while allowing the
People to present evidence of Duclos's commission of uncharged crimes, did not amount
to an arbitrary application of the state's evidentiary rules. Further, Green does not
provide that a trial court must permit a defendant to present all marginally probative
20 relevant evidence whenever the court permits the prosecution to present inculpatory
evidence with respect to a particular issue.
Accordingly, we conclude that the trial court did not violate Duclos's
constitutional rights by limiting the defense's presentation of evidence related to his
seizures.
21 B. The trial court did not relieve the prosecution of its burden to prove every element of the charged offenses beyond a reasonable doubt by instructing the jury pursuant to the standard CALCRIM instruction on unconsciousness
Duclos contends that the trial court erred in instructing the jury pursuant to the
standard CALCRIM instruction on unconsciousness, CALCRIM No. 3425. Duclos
maintains that the instruction improperly lessened the prosecution's burden to prove every
element of the charged offenses beyond a reasonable doubt, in violation of his federal
constitutional right to due process. We review this contention pursuant to the de novo
standard of review. (See People v. Guiuan (1998) 18 Cal.4th 558, 569-570 [jury
instruction claim that involves the determination of applicable legal principles is
reviewed de novo].)
The trial court instructed the jury pursuant to a modified version of CACLRIM
No. 3425 in relevant part as follows:
"The people must prove beyond a reasonable doubt that the defendant was conscious when he acted. If there is proof beyond a reasonable doubt that the defendant acted as if he were conscious, then you should conclude that he was conscious unless based on all the evidence, you have a reasonable doubt that he was conscious, in which case you must find him not guilty."
Duclos acknowledges that the California Supreme Court in Babbitt, supra, 45
Cal.3d 660 concluded that a nearly identical instruction (former CALJIC No. 4.31) did
22 not violate due process by impermissibly lightening the prosecution's burden of proving
every element beyond a reasonable doubt.6 The Babbitt court reasoned in part:
"Unconsciousness is a defense. (§ 26.) Although the state, once the defendant raises the issue, has assumed the burden of disproving unconsciousness, this fact of itself does not transform absence of the defense—consciousness—into an element of murder for purposes of due process analysis. This is true even though unconsciousness negates the elements of voluntariness and intent, and when not voluntarily induced is a complete defense to a criminal charge [Citations.] [Citation] [¶] In sum, because consciousness is not an element of the offense of murder (nor of any offense), [former] CALJIC No. 4.31 does not impermissibly shift to the defendant the burden of negating an element, nor does the instruction violate due process by impermissibly lightening the prosecution's burden of proving every element beyond a reasonable doubt." (Babbitt, supra, at p. 693.)
Duclos does not contend either that CALCRIM No. 3425 differs in any material
manner from the instruction upheld by the Babbitt court or that his claim is different from
the one rejected in Babbitt. Rather, Duclos maintains that "Babbitt must be reconsidered"
in light of the United States Supreme Court decisions in Apprendi v. New Jersey (2000)
530 U.S. 466 (Apprendi) and Alleyne v. United States (2013) ___ U.S. ___ [133 S.Ct.
2151] (Alleyne). Specifically, Duclos contends that Apprendi and Alleyne "implicitly
6 The instruction at issue in Babbit stated in relevant part: " 'If the evidence establishes beyond a reasonable doubt that at the time of the commission of the alleged offense the defendant acted as if he were conscious, you should find that he was conscious, unless from all the evidence you have a reasonable doubt that he was in fact conscious at the time of the alleged offense. [¶] 'If the evidence raises a reasonable doubt that he was in fact conscious, you must find that he was then unconscious.' " (Babbit, supra, 45 Cal.3d at p. 691, fn. 9.) 23 overrule" Babbitt because these decisions also "implicitly overruled" another decision of
the United States Supreme Court, Patterson v. New York (1977) 432 U.S. 197, upon
which the Babbitt court relied for its conclusion that consciousness was not an element of
the offenses at issue in Babbitt. Duclos contends that Apprendi and its progeny "redefine
what constitutes an 'element' of an offense to include any fact that 'alters the legally
prescribed punishment so as to aggravate it.' " (Quoting Alleyne, supra, 133 S.Ct. at
p. 2162.) Duclos further argues that "[w]hen evidence brings the defendant's
consciousness into question, that fact alters the legally prescribed punishment, making it
an element of the offense under Alleyne."
We have serious doubts concerning whether Apprendi or its progeny overruled
Patterson, implicitly or otherwise, and whether these cases implicitly overrule Babbitt's
conclusion, that "consciousness is not an element of the offense of murder (nor of any
offense)." (Babbitt, supra, 45 Cal.3d at p. 693.) Specifically, we question whether
evidence of unconsciousness "alters the legally prescribed punishment so as to aggravate
it" (Alleyne, supra, 133 S.Ct. at p. 2162) as that phrase is used in Apprendi and its
progeny.
In any event, Duclos acknowledges that "an appellate court should follow
California Supreme Court decisions regarding federal constitutional issues unless the
United States Supreme Court provides direct, contrary authority." That principle is
dispositive of Duclos's claim in this court. It is clear, even to Duclos, whose argument
expressly relies on two levels of purported implicit overrulings, that the United States
24 Supreme Court has not directly overruled Babbitt. Until either the California Supreme
Court or the United States Supreme Court provides authority that is directly contrary to
Babbitt, we are bound to follow that decision. (See, e.g., People v. Medina (2007) 158
Cal.App.4th 1571, 1580 ["[U]ntil the United States Supreme Court provides direct
authority, we are bound to follow the law of the California Supreme Court."].)
Accordingly, we conclude that the trial court did not relieve the prosecution of its
burden to prove every element of the charged offenses beyond a reasonable doubt by
instructing the jury pursuant to CALCRIM No. 3425.
C. The trial court did not err in failing to suppress a photograph taken from Duclos's cell phone because the search of the phone was conducted in good faith under then-existing California law
Duclos contends that the trial court erred in failing to exclude from evidence a
photograph taken from Duclos's cell phone because the search of the phone was
conducted without a warrant as required under Riley v. California (2014) ___ U.S. ___
[134 S.Ct. 2773] (Riley). The People contend that suppression was not warranted
because the search of the phone was conducted in good faith under People v. Diaz (2011)
51 Cal.4th 84 (Diaz).7 Whether the good-faith exception to the exclusionary rule applies
under these circumstances is a question of law that we review de novo. (See U.S. v.
Burgess (10th Cir. 2009) 576 F.3d 1078, 1095 ["Whether the 'good faith exception' to the
7 The issue of whether the good-faith exception to the exclusionary rule applies to searches conducted pursuant to Diaz before Riley is pending before the California Supreme Court. (See People v. Macabeo, review granted Nov. 25, 2014, S221852.) 25 exclusionary rule should be applied is a question of law, subject to de novo review by this
Court.]".)
26 1. Factual and procedural background
Detective Smith testified that police found a cell phone in Duclos's pocket at the
time of his arrest. Before interviewing Duclos, Smith searched the cell phone. Detective
Smith found "a photo of a handgun that appeared to be the same handgun that was used
in the crime."8 The People presented a photograph of the cell phone photograph to the
jury and the trial court admitted the photograph that was shown to the jury in evidence.
During his cross-examination of Duclos, the prosecutor noted that the time stamp
on the cell phone photograph indicated that the photograph had been taken about two and
a half hours before the commission of the charged offenses. Duclos admitted that the
photograph depicted the gun used in the offenses, but stated that he was "not sure
exactly" if he had taken the photograph. Duclos acknowledged having the cell phone
with him "all day" on the day of the offenses.
2. Governing law
a. The law governing the search of a defendant's cell phone incident to an arrest
In Diaz, supra, 51 Cal.4th at page 88, the California Supreme Court held that a
warrantless search of a defendant's cell phone was constitutional, as long as the search
was conducted incident to a lawful custodial arrest. The Diaz court concluded that the
search of the cell phone was analogous to other searches that the United States Supreme
8 As noted previously, the handgun was in fact a BB gun. 27 Court had determined to be lawful in that the defendant's cell phone was " 'personal
property . . . immediately associated with [his] person' . . . . " (Id. at p. 93.)
In Riley, the United States Supreme Court reversed a decision of this court decided
in reliance on Diaz. (Riley, supra, 134 S.Ct. at p. 2481.) The Riley court concluded that
police may not conduct a warrantless search of "digital information on a cell phone
seized from an individual who has been arrested." (Id. at p. 2480.) After discussing the
rationales for the search incident to arrest doctrine and the nature of data commonly
stored on cell phones, the Riley court concluded that "a warrant is generally[9] required
before such a search, even when a cell phone is seized incident to arrest." (Id. at
p. 2493.)
b. Evidence obtained in a search conducted in good faith reliance on binding appellate precedent is not subject to the exclusionary rule
In Davis v. United States (2011) ___U.S. ___ [131 S.Ct. 2419] (Davis), the United
States Supreme Court considered whether evidence obtained from a search conducted in
reasonable reliance on binding appellate authority may be excluded pursuant to the
exclusionary rule when that authority is overruled by a decision released after the search.
The Davis court explained that the rule requiring exclusion of evidence obtained in
violation of the Fourth Amendment is proper when the law enforcement action in
9 The Riley court noted that "even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone." (Riley, supra, at p. 2494.) For example, the Riley court noted that exigent circumstances may apply to permit a warrantless search given the particular circumstances of a case. (Ibid.) The People do not contend on appeal that the search of Duclos's cell phone was lawful under any such exceptions. 28 question constitutes " 'deliberate,' 'reckless,' or 'grossly negligent' " conduct. (Davis,
supra, at p. 2427.) The Davis court explained that "the deterrent value of exclusion is
strong" under these circumstances, and "tends to outweigh the resulting costs." (Ibid.) In
contrast, when "the police act with an objectively 'reasonable good-faith belief' that their
conduct is lawful," the " ' "deterrence rationale loses much of its force," ' and exclusion
cannot 'pay its way." ' " (Id. at p. 2428.) Permitting the exclusion of evidence obtained
during a search conducted pursuant to then-binding appellate precedent authorizing a
search would be to " '[p]enaliz[e] the officer for the [appellate judges'] error.' " (Id. at
p. 2429.) Accordingly, the Davis court concluded, "We therefore hold that when the
police conduct a search in objectively reasonable reliance on binding appellate precedent,
the exclusionary rule does not apply." (Id. at p. 2434.)
Detective Smith conducted the search at issue in this case prior to the United
States Supreme Court's decision in Riley. At the time Detective Smith searched Duclos's
cell phone, the California Supreme Court's decision in Diaz was the clearly established
law in this state. Because the Diaz court held that a warrantless search of a defendant's
cell phone was constitutional when conducted as a search incident to a lawful custodial
arrest, Diaz, supra, 51 Cal.4th 84 clearly authorized the search of Duclos's phone.
Accordingly, because the search was conducted in "objectively reasonable reliance on
binding appellate precedent, the exclusionary rule does not apply." (Davis, supra, 131
S.Ct. at p. 2434.)
29 Duclos's arguments to the contrary are not persuasive. Duclos notes that Diaz
involved a search of a text message contained in a cell phone, while this case involves a
search of a photograph stored in a cell phone. Duclos contends that the Diaz court could
have "crafted its holding to cover broader cell phone searches, including searches of
photographs stored on cell phones," but that the Diaz court did not do so. We reject this
contention. Duclos presents no argument as to why a search for photographs stored in the
data contained in a cell phone is a "broader" search than one for text messages stored in
such data. Nor is there any language in Diaz that would suggest that such a distinction
should be drawn. (See also Riley, supra, 134 S.Ct. at p. 2481 [stating that the Diaz court
"held that the Fourth Amendment permits a warrantless search of cell phone data incident
to an arrest, so long as the cell phone was immediately associated with the arrestee's
person" (italics added)].)
Duclos also argues that it would have been unreasonable for Detective Smith to
rely on Diaz because Riley was a unanimous opinion decided three years after Diaz, Diaz
was not consistent with prior United States Supreme Court case law, the concurring and
dissenting opinions in Diaz foreshadowed Riley, and case law decided after the search of
Duclos's phone demonstrated that "the [United States] Supreme Court would soon
overrule Diaz." As noted above, at the time of the search, there was binding California
Supreme Court decision directly on point that authorized the search.10 (Diaz, supra, 51
10 In contending that we should review this issue notwithstanding that defense counsel did not object to the introduction of the evidence in the trial court, Duclos 30 Cal.4th at p. 88.) We are aware of no authority that would require law enforcement
officers to determine the doctrinal soundness of opinions of our Supreme Court at the
time they conduct a search. Accordingly, we conclude that the good faith exception
applies and that the evidence gathered in the search of Duclos's cell phone need not be
suppressed. (Davis, supra, 131 S.Ct. at p. 2427.)
D. There is no cumulative error
Duclos contends that the cumulative effect of the errors that he alleges requires
reversal. "Under the 'cumulative error' doctrine, errors that are individually harmless may
nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th
694, 772, fn. 32.) We have concluded that none of Duclos's asserted claims of error has
merit. As a result, there are no errors for which the cumulative effect would require
reversal of the judgment against him.
acknowledges "at the time of Mr. Duclos's trial, binding California law made any objection to the cell phone evidence futile." (Citing Diaz.) 31 IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.