Filed 8/28/13 P. v. White CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055529

v.                                                                       (Super.Ct.No. RIF10004243)

CRAIG KEYON WHITE,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Elisabeth Sichel and

Michael B. Donner, Judges. Affirmed.

         Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and A. Natasha

Cortina, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       A jury found defendant and appellant Craig Keyon White (defendant) guilty of

four counts of first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a)),1 two counts of

attempted robbery (§§ 644, 211) and one count of first degree burglary (§ 459). After

defendant admitted the allegations that he had two strike priors within the meaning of the

three strikes law (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)) and that he had

served a prior term in prison (§ 667.5, subd. (b)), the trial court sentenced him under the

three strikes law to serve four consecutive terms of 25 years to life in state in prison.2

       In this appeal defendant challenges the jury’s guilty verdicts on the ground, first,

that by sustaining the prosecutor’s objection to a statement defendant’s attorney made

during closing argument, the trial court violated various rights guaranteed to defendant

under the federal constitution, including his right to a fair trial and his right to the

effective assistance of counsel. Next, defendant contends the trial court abused its

discretion by denying defendant’s so-called Pitchess3 motion. Finally, defendant

contends the trial court abused its discretion by denying defendant’s oral motion for

release of juror identifying information.

       We conclude defendant’s claims are meritless. Therefore, we will affirm the

judgment.



       1   All statutory references are to the Penal Code unless indicated otherwise.

       2 The trial court sentenced defendant to serve one year in state prison on the
section 667.5, subdivision (b), prior prison term, and then struck that sentence.

       3   Pitchess v. Superior Court (1974) 11 Cal.3d 531(Pitchess).


                                               2
                                           FACTS

       What happened in this case is undisputed—four men, one of whom was armed

with a chrome handgun, entered a house and initially robbed four people, taking items

from them personally and also taking things found in the house, including a Sony

PlayStation®3. Defendant was arrested three weeks after the robbery, when he tried to

pawn the PlayStation®3. The only issue at trial was whether defendant was one of the

robbers.

       The four initial robbery victims were Dennis Estevez and Arian Valdez,4 who

lived together in the house where the robbery occurred, Patricia Alvarado, who is

Estevez’s girlfriend, and Marcus Harden, a friend of Estevez and Valdez. During the

robbery, Tyler Gonzalez and Jose Reyes, who are both friends of Valdez and Estevez,

came to the house. Before they could be warned away, Gonzalez and Reyes were

directed into the house by one of the robbers, later identified as defendant, who was

holding a gun to the back of Estevez’s head as Estevez stood at the open door. Defendant

directed them both to lie down on the floor with the three other victims, all of whom had

been directed to cover their heads and not look at defendant or the other robbers. When

the robbers’ attention was diverted, Reyes got up and ran from the house to a

convenience store where he convinced the clerk to call the police.




       4   Valdez also apparently was referred to at trial as Arian Ibarra.


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       The robbers left the house before the police arrived, but after taking three of the

remaining five victims into the bathroom and directing them to count to 100. After they

determined the robbers had left the house, one of the victims ran next door and also

called 911.

       Estevez, Valdez, Harden, and Alvarado each identified defendant from a

photographic lineup prepared by Deputy Jonathan Bodnar. Although only some of them

identified defendant as the gunman, they all said defendant was one of the robbers.

       To support his defense of misidentification, defendant presented an alibi (that he

had been at the hospital on the night of the robbery visiting his recently born son, then at

his mother’s house for the rest of the night and until the next morning) and the testimony

of an expert on memory and suggestibility, which involves the influence that new

information obtained after an event has on one’s memory of that event. The expert,

Mitchell Eisen, who has a doctorate in psychology, and is the director of the graduate

program in forensic psychology at California State University, Los Angeles, testified

about the many things that affect the reliability of memory and that influence the outcome

of a lineup. Among other things, Dr. Eisen testified, when the interviewer knows which

photo is that of the suspect, the interviewer can inadvertently or unconsciously affect the

outcome of the photographic lineup; the viewer of a photographic lineup brings certain

expectations to the process including the expectation that one of the photographs will be

of the suspect and that the interviewer expects the viewer to identify someone;

identification based on the witness’s actual memory typically happens quickly, within

10 to 12 seconds after seeing a lineup; once a witness identifies someone as the suspect,


                                              4
the witness incorporates that image into his or her actual memory of the event and then

reconstructs the event around the person identified; and that the most accurate memories

of an event are those recounted right after the event.

       Additional facts pertinent to the issues defendant raises in this appeal will be

recounted below.

                                      DISCUSSION

                                             1.

   VIOLATION OF DEFENDANT’S VARIOUS CONSTITUTIONAL RIGHTS

               INCLUDING THE RIGHT TO PRESENT A DEFENSE

       During her closing argument, defense counsel stated, “And if you believe that

Miss Alvarado, Mr. Estevez, and Mr. Valdez sharing a household together, all of these

individuals being friends, go through this terrifying traumatic incident and never speak a

word of it . . . .” The prosecutor interrupted objecting that the argument was based on

speculation. The trial court sustained that objection. Defendant contends the trial court

effectively precluded him from arguing, due to the close relationship between the three

victims, that it was likely they had talked with each other about the robbery and the

criminal investigation. In other words, defendant contends the trial court precluded him

from attacking the credibility of the victims’ testimony regarding what happened during

the robbery and the validity of their ability to independently identify defendant as one of

the robbers.




                                              5
       The right to present a closing argument is not in dispute in this appeal. (See

Herring v. New York (1975) 422 U.S. 853, 858-860.) What is disputed is defendant’s

characterization of the effect of the trial court’s ruling. That characterization is

inaccurate. Therefore, even if the trial court’s ruling was incorrect it did not affect

defendant’s ability to present his defense of mistaken identification.

       The record discloses that defense counsel did not miss a beat. Despite the

prosecutor’s objection and the trial court’s ruling, defense counsel completed her

argument that it was “unreasonable” for the jury to believe the victims had not talked

with each other about the robbery. Before the prosecutor asserted the speculation

objection, defense counsel had pointed out that one of the victims, Tyler Gonzalez, not

only “admitted that he wouldn’t be able to ID anybody from the get go. . . . But even

more importantly, Mr. Gonzales [sic] told us something else: He told us how many times

these witnesses had talked to each other.” As defense counsel stated, Tyler Gonzalez

“said something like he had been asked so many questions over and over again, he was

confusing the details himself. He couldn’t remember what he personally remembered

anymore versus what someone else had told him.”

       Defense counsel argued at great length and in detail why the victims’

identifications of defendant from a photo lineup were tainted and consequently

unreliable. Not only did defense counsel point out that the victims presumably had talked

with each other, but also that before they were shown the lineups, Arian Valdez and

Dennis Estevez had read the police reports, “[p]olice reports that include[d] witness

statements.” Defense counsel made similar arguments regarding each of the victims. For


                                               6
example, he argued that Marcus Harden, as well as Valdez and Estevez, knew defendant

was the pawnshop suspect at the time Deputy Bodnar showed him the photo lineup that

included defendant’s photo.

       With respect to Patricia Alvarado, defense counsel argued Deputy Bodnar must

have shown her defendant’s photo before she identified him from the photo lineup.

Otherwise, it was just too coincidental that Deputy Bodnar had a photograph of defendant

smiling and revealing his crooked teeth, and produced that photo when Miss Alvarado

said she would be more confident of her identification if she could see the teeth of the

person she had just identified.

       In addition to pointing out the defects and inconsistencies in the testimony of the

victims, defense counsel correlated those defects and deficiencies to Dr. Eisen’s

testimony. For example, defense counsel reminded the jurors that Dr. Eisen had talked

about contamination, which results when a witness is exposed to other people’s versions

of an event. Defense counsel also reminded the jurors that Dr. Eisen had explained the

concept of expectancy and how it affects the validity of identification from a

photographic lineup: the viewer knows he or she is expected to identify someone and

that expectancy can result in an incorrect identification.

       We will not recount anymore details of defense counsel’s closing argument. From

the noted examples, and our review of the record, we are persuaded defendant was able to

fully and completely present his defense of misidentification both in cross-examination of

witnesses and in closing argument. Because defendant’s initial assertion is incorrect, we

will not address the remainder of his argument. In short, by sustaining the prosecution’s


                                              7
objection that defense counsel’s argument was based on speculation, defendant was not

precluded from presenting his defense or otherwise adversely affected and therefore if the

trial court erred the error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)

                                             2.

                 DENIAL OF DEFENDANT’S PITCHESS MOTION

       Defendant filed a motion for discovery of the personnel records of Riverside

County Sheriff’s Deputy Bodnar, the deputy who prepared the photographic lineups and

showed those lineups to the robbery victims. Defendant asserted in his motion that the

deputy’s personnel records were discoverable under Evidence Code section 1043 et seq.,

which codifies the Supreme Court decision in Pitchess. The trial court denied

defendant’s motion after finding defendant had not made the required showing.

       Defendant contends in this appeal that he established the required plausible factual

scenario, which in turn triggered the trial court’s obligation to conduct an in camera

review of the deputy’s personnel file to determine if it contains material relevant to

defendant’s claim. We disagree with defendant’s assertion.

       The pertinent legal principles are well settled. A criminal defendant is entitled to

discovery of a police officer’s confidential personnel records if those files contain

information that is potentially relevant to the defense. (Pitchess, supra, 11 Cal.3d at

pp. 537-538; Evid. Code, §§ 1043-1045.) To obtain discovery, the defendant must file a

motion, supported by affidavits “showing good cause for the discovery or disclosure

sought, setting forth the materiality thereof to the subject matter involved in the pending

litigation.” (Evid. Code, § 1043, subd. (b)(3).) If good cause is shown, the trial court


                                              8
then reviews the records in camera to determine if any of them are relevant to the

proposed defense. (Evid. Code, § 1045, subd. (b).)

       The good cause showing that triggers the trial court’s in-chambers review is

“relatively low.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83.) The

defendant must present a specific factual scenario of officer misconduct that is plausible,

i.e., one that could or might have occurred. (Warrick v. Superior Court (2005) 35 Cal.4th

1011, 1018-1019 (Warrick); see also California Highway Patrol v. Superior Court (2000)

84 Cal.App.4th 1010, 1017.) The defendant must also demonstrate how the discovery

would support the defense or how it would impeach the officer’s version of events.

Because the information discoverable under a Pitchess motion is limited to “instances of

officer misconduct related to the misconduct asserted by the defendant,” (Warrick, supra,

35 Cal.4th at p. 1021) the defendant must also specifically describe that misconduct. On

appeal we review a trial court’s ruling on a Pitchess motion for abuse of discretion.

(Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)

       In this case, defendant’s trial attorney offered the following factual scenario to

support defendant’s Pitchess motion: Defendant was at his mother’s house, not at the

scene of the crime, on the night in question; defendant did not participate in the crimes,

nor did he have any knowledge that the Sony PlayStation®3 was stolen property; Deputy

Bodnar assumed defendant had participated in the robberies once the deputy learned

defendant had pawned the stolen Sony PlayStation®3; Deputy Bodnar’s “overzealousness

to turn [defendant] into a robbery suspect caused [defendant] to be wrongfully identified

by witnesses who were unable to identify any suspect, or otherwise would not have

                                              9
identified [defendant] as a suspect”; Deputy Bodnar “falsified his reports regarding the

conversations and conduct of himself and of the witnesses surrounding alleged

identifications of [defendant] as a suspect”; Bodnar stated in his reports that he had

recorded the witness interviews and booked those recordings into evidence, but then he

destroyed those recordings in an effort to prevent his misconduct from being discovered;

and the “Riverside County District Attorney’s Office and Riverside County Sheriff’s

Department have both had reason to question [Deputy] Bodnar’s veracity and conduct as

an officer in this and other cases, thus prompting investigations from both agencies.” In a

supplemental declaration, defense counsel acknowledged that Deputy Bodnar’s recorded

witness interviews had been located but that his reports of what the witnesses said when

they identified defendant in the photo lineups conflicted with the recorded interviews.

       In short, defendant’s factual scenario is that he was not one of the robbers; he was

at his mother’s house on the night of the robbery; Deputy Bodnar must have done

something untoward in connection with the photo lineups, such as tampering with the

evidence or unduly influencing the victims, which explains why the victims identified

defendant; and the deputy destroyed the recordings of those interviews in order to cover

up his misconduct. That is a specific factual scenario. The remaining issue is whether

that scenario is plausible.

       To determine plausibility, i.e., whether the scenario could have or might have

occurred, we look to the evidence defendant submitted to support his claim. Defendant’s

factual scenario was plausible only until Deputy Bodnar located the recordings of his

interviews with the victims. Once the recordings were located, and defense counsel


                                             10
submitted transcripts of those recordings to the court to support defendant’s motion, the

plausibility of defendant’s factual scenario turned on the content of the transcripts which

showed what actually occurred. The trial court found defendant’s factual scenario was

not plausible because the police reports and transcribed witness interviews of what

actually happened contradicted defendant’s scenario that Deputy Bodnar had somehow

influenced their selection of defendant from the photo lineup.

       We agree with the trial court that the evidence does not support, and in fact

refutes, defendant’s scenario that Deputy Bodnar improperly influenced the victims’

identification of defendant from the photo lineups. In arguing otherwise, defendant cites

discrepancies between the recordings of the interviews and Deputy Bodnar’s written

reports. For example, defendant notes Deputy Bodnar’s police report does not disclose

that when Valdez a.k.a. Ibarra selected defendant’s photograph from the so-called six-

pack photo lineup he said, “This guy looks closer, but I don’t think it was him. The other

guy looked older.”5 That fact does not establish defendant’s claim that Deputy Bodnar

influenced Ibarra to identify defendant from the photo lineup. It only shows Ibarra was

less than 100 percent certain about that identification, a fact Deputy Bodnar included in

his report when he stated Ibarra indicated he was 50 percent sure defendant entered the

house and committed the robbery.



       5  The transcript of the recorded interview shows Ibarra also stated, “the whole
face structure, very similar. I mean it’s been over a month, you know.” After Deputy
Bodnar said, “Mm-hm,” Ibarra continued, “So, it’s pretty hard for me to tell, but number
six [defendant’s photo] looks like he has that, you know, facial features, but . . . .”


                                            11
       Similarly, the transcript of Deputy Bodnar’s interview of Dennis Estevez does not

support defendant’s assertion that the deputy prompted Estevez to pick defendant’s

photograph. The transcript discloses that the deputy asked, “Okay. Is there anyone that

looks similar, ‘cause I see you—it kinda looks like you keep paying attention to one

photograph to me. You keep looking back at the one.” Estevez identified a photograph

(“Maybe this one with the du-rag”) and indicated he was 50 percent positive about the

identification.

       We will not address each witness identification because defendant has

demonstrated only that the recordings of the interviews differ in some respects from some

of Deputy Bodnar’s reports; they do not show that he improperly influenced any of the

victims into selecting defendant’s photograph from the photo lineups. In short, we know

from the evidence what actually occurred when Deputy Bodnar interviewed each of the

witnesses, and that evidence shows defendant’s scenario is not plausible. Therefore, the

trial court did not abuse its discretion when it denied defendant’s Pitchess motion based

on defendant’s failure to establish good cause for the requested discovery.

                                             3.

                     DISCLOSURE OF JUROR INFORMATION

       Defendant filed a motion for new trial in which he asserted jury misconduct,

among other things. According to the declaration of his attorney submitted in support of

the new trial motion, after trial concluded and the trial court discharged the jury, about

two-thirds of the jury panel stayed and discussed the case with the attorneys; during that

discussion the jurors “collectively stated,” among other things, that when the jurors were


                                             12
unable to reach verdicts after several days of deliberations, they discussed their

observations that throughout the trial, defense counsel would talk to defendant after

cross-examining prosecution witnesses; “[t]he jurors . . . opined that discussion between

[defense counsel] and the defendant would have been unnecessary if the defendant had

not been one of the robbers”; and after the jury’s discussion, at least one juror changed

her verdict from not guilty to guilty.

       In its opposition the prosecution asserted, first, that defense counsel’s declaration

was hearsay to the extent it purported to recount what a juror had said, and in any event,

defense counsel’s version of what the juror said was wrong. According to the prosecutor,

who was present and also talked with the jurors after they had been discharged, the

attorneys had asked for constructive criticism. One juror responded that she did not think

it was wise, if they were claiming defendant was not there, for defense counsel to ask

defendant after each witness testified whether there was anything else defense counsel

needed to ask. That juror thought it “seemed strange if the defendant was claiming he

wasn’t there.” According to the prosecutor, the juror did not say they discussed this

during their deliberations and she did not say that they changed their verdicts as a result.

       The trial court heard defendant’s new trial motion in conjunction with defendant’s

sentencing hearing. At that hearing, the trial court asked defense counsel to address the

issue of whether her declaration was inadmissible hearsay. Defense counsel responded,

“Well, your Honor, if the Court feels as though it needs more factual information, then I

would request to unseal the juror information so that a questionnaire or something of the

sort could be sent to the jurors so that the Court can receive the information that it’s


                                             13
seeking.” The trial court denied that request and ultimately denied defendant’s new trial

motion.

        On appeal, defendant characterizes the statement quoted above as a motion under

Code of Civil Procedure section 237 for disclosure of juror identifying information. We

do not agree, but we will not belabor the point, because even if we were to agree,

defendant has not demonstrated error.

        After the jury’s verdict is recorded in a criminal case, the personal identifying

information about the jurors who served on the trial is sealed. (Code Civ. Proc., § 237,

subd. (a)(2).) A defendant or the defendant’s attorney may request access to that

information in order to “communicate with jurors for the purpose of developing a motion

for new trial or any other lawful purpose.” (Code Civ. Proc., § 206, subd. (g).) The

procedure for obtaining that information is set out in Code of Civil Procedure section

237, subdivision (b): “Any person may petition the court for access to these records. The

petition shall be supported by a declaration that includes facts sufficient to establish good

cause for the release of the juror’s personal identifying information. The court shall set

the matter for hearing if the petition and supporting declaration establish a prima facie

showing of good cause for the release of the personal juror identifying information . . . .”

On appeal, we review a trial court’s denial of a petition to disclose juror identifying

information for abuse of discretion. (People v. Carrasco (2008) 163 Cal.App.4th 978,

991.)




                                              14
       The trial court denied defendant’s request for disclosure of juror identifying

information in part because defendant had not been diligent in making his request. As the

trial court observed, defendant had an opportunity to complete his investigation in order

to file a new trial motion. The fact defense counsel waited until the hearing on that

motion to request disclosure of juror information suggests that information would not aid

defendant in developing his juror misconduct claim.

       Defense counsel learned of the purported jury misconduct on the last day of trial,

when she spoke with the jurors outside the courtroom. Despite that knowledge, defense

counsel did not immediately report the purported misconduct to the trial court, nor did

she ask for contact information from the juror who reputedly revealed the misconduct.

Despite the obvious differences, the circumstances here are equivalent to those in People

v. Carrasco, in which the court stated, in holding the trial court did not abuse its

discretion in denying disclosure of juror identifying information, “What strikes us even

more is that defense counsel learned about the claimed juror misconduct during the trial,

before a verdict was entered, and had an opportunity to try to rectify any problem she

perceived. Defense counsel could have proposed an additional line of inquiry to the trial

court if she believed jury misconduct had occurred which the court was overlooking. She

did not.” (People v. Carrasco, supra, 163 Cal.App.4th at p. 991.)




                                             15
       Because defense counsel did not take any action with respect to the jury’s

purported misconduct other than cite it in a motion for new trial, we suspect the

prosecutor’s version more accurately describes what happened when the attorneys talked

with the jurors. In any event, we conclude the trial court did not abuse its discretion by

denying defendant’s request to disclose identifying information about the trial jurors.

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                                McKINSTER
                                                                                             J.

We concur:



HOLLENHORST
          Acting P. J.



MILLER
                          J.




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