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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. CRAIG KEYON WHITE, Defendant and Appellant. E055529 (Super.Ct.No . RIF10004243)
OPINION

APPEAL from the Superior Court of Ri verside 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, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and A. Natasha Cortina, Deputy Attorn eys General, for Plaintiff and Respondent.2 A jury found defendant and appellant Craig Keyon White (d efendant) 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 coun t of first degree burglary (§ 459). After defendant admitted the allegations that he had two strike priors with in 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 fo ur consecutive terms of 25 year s to life in state in prison. 2 In this appeal defendant challenges the jury’s guilty ve rdicts on the ground, first, that by sustaining the prosecutor’s objection to a statement defendant’s attorney made during closing argument, the trial court violat ed 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, defe ndant contends the trial court abused its discretion by denying defendant’s so-called Pitchess 3 motion. Finally, defendant contends the trial court abused its discre tion by denying defendant’s oral motion for release of juror iden tifying information. We conclude defendant’s claims are me ritless. 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 ).3 FACTS What happened in this case is undis puted—four men, one of whom was armed with a chrome handgun, entered a house a nd 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 we re 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, w ho are both friends of Valdez and Estevez, came to the house. Before they could be warned away, Gonzal ez and Reyes were directed into the house by one of the robbers, later iden tified 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 w ith the three other victims, all of whom had been directed to cover their h eads and not look at defendant or the other robbers. When the robbers’ attention was diverted, Re yes got up and ran from the house to a convenience store where he convin ced the clerk to call the police.

4 Valdez also apparently was refe rred to at trial as Arian Ibarra.4 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 Alvara do each identified defendant from a photographic lineup prepared by Deputy Jonathan Bodnar. Although only some of them identified defendant as the gunman, they a ll said defendant was one of the robbers. To support his defense of misidentificati on, defendant presente d an alibi (that he had been at the hospital on the night of the robbery visiting hi s recently born son, then at his mother’s house for the rest of the nigh t 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 psychol ogy, and is the director of the graduate program in forensic psychology at Californi a State University, Los Angeles, testified about the many things that affe ct the reliability of memory an d that influence the outcome of a lineup. Among other things, Dr. Eisen testified, when the in terviewer knows which photo is that of the suspect, the interviewer can inadvertently or unc onsciously affect the outcome of the photographic lineup; the viewer of a photographic lineup brings certain expectations to the process including the exp ectation that one of th e photographs will be of the suspect and that the interviewer expects the viewer to identify someone; identification based on the w itness’s actual memory typica lly happens quickly, within 10 to 12 seconds after seeing a lineup; once a witness identif ies someone as the suspect,5 the witness incorporates that image into his or her actual me mory of the event and then reconstructs the event around the person identif ied; and that the most accurate memories of an event are those recoun ted 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 V ARIOUS CONSTITUTIONAL RIGHTS INCLUDING THE RIGHT TO PRESENT A DEFENSE During her closing argument, defense co unsel 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 terri fying traumatic incident and never speak a word of it . . . .” The prosecutor interr upted objecting that the argument was based on speculation. The trial court su stained that objection. Defenda nt contends the trial court effectively precluded him from arguing, due to the close relationship between the three victims, that it was likely th ey had talked with each ot her about the robbery and the criminal investigation. In other words, de fendant contends the trial court precluded him from attacking the credibility of the victims’ testimony regarding wh at happened during the robbery and the validity of their ability to inde pendently identify de fendant as one of the robbers.6 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.) Wh at 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 wa s incorrect it did not affect defendant’s ability to present his de fense 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 ju ry to believe the victims had not talked with each other about the ro bbery. Before the prosecuto r 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 some one else had told him.” Defense counsel argued at great le ngth and in detail why the victims’ identifications of defendant from a phot o lineup were tainte d 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 line ups, Arian Valdez and Dennis Estevez had read the police reports, “[p]olice reports that include[d] witness statements.” Defense counsel made similar ar guments regarding each of the victims. For7 example, he argued that Marcus Harden, as well as Valdez and Es tevez, knew defendant was the pawnshop suspect at the time Deput y Bodnar showed him the photo lineup that included defendant’s photo. With respect to Patricia Alvarado, defe nse 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 iden tification if she could see the teeth of the person she had just identified. In addition to pointing out the defects and inconsistenc ies in the testimony of the victims, defense counsel correlated those defects and deficiencies to Dr. Eisen’s testimony. For example, defense counsel remi nded the jurors that Dr. Eisen had talked about contamination, which resu lts 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 affect s the validity of id entification 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 de fense counsel’s closi ng argument. From the noted examples, and our revi ew of the record, we are persuaded defendant was able to fully and completely present his defense of mi sidentification both in cross-examination of witnesses and in closing argument. Because defendant’s initial asser tion is incorrect, we will not address the remainder of his argument. In short, by sustaining the prosecution’s8 objection that defense counsel’s argument was based on speculation, defendant was not precluded from presenting his defense or otherw ise 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 dete rmine if it contains material relevant to defendant’s claim. We disagree with defendant’s assertion. The pertinent legal principles are well settle d. 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, § 1 043, subd. (b)(3).) If good cause is shown, the trial court9 then reviews the records in ca mera 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.) Th e defendant must also dem onstrate how the discovery would support the defense or how it would im peach the officer’s version of events. Because the information discoverable under a Pitchess motion is limited to “instances of officer misconduct related to the mi sconduct 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 offe red 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 knowledg e 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 ro bbery suspect caused [defendant ] to be wrongfully identified by witnesses who were unable to identify an y suspect, or otherwise would not have10 identified [defendant] as a su spect”; Deputy Bodnar “falsifi ed his reports regarding the conversations and conduct of himself a nd 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 th ose recordings into ev idence, 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 cas es, thus prompting investigati ons from both agencies.” In a supplemental declaration, de fense 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 w ith the recorded interviews. In short, defendant’s factual scenario is th at he was not one of the robbers; he was at his mother’s house on the night of the ro bbery; Deputy Bodnar must have done something untoward in connection with the ph oto lineups, such as tampering with the evidence or unduly in fluencing the victims, which expl ains why the victims identified defendant; and the deputy destro yed the recordings of those in terviews in order to cover up his misconduct. That is a specific factua l scenario. The remain ing 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 evid ence defendant submitted to sup port his claim. Defendant’s factual scenario was plausible only until Depu ty Bodnar located the recordings of his interviews with the victims. Once the recordings were located, and defense counsel11 submitted transcripts of those recordings to the court to support defendant’s motion, the plausibility of defendant’s fact ual scenario turned on the cont ent of the transcripts which showed what actually occurred. The trial court found defe ndant’s factual scenario was not plausible because the poli ce reports and transcribed w itness 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 improper ly influenced the victims’ identification of defendant fro m the photo lineups. In argui ng otherwise, defendant cites discrepancies between the recordings of th e interviews and Depu ty Bodnar’s written reports. For example, defendant notes Deputy Bodnar’s police report does not disclose that when Valdez a.k.a. Iba rra selected defendant’s photograph from the so-called sixpack photo lineup he said, “Thi s guy looks closer, but I don’t think it was him. The other guy looked older.” 5 That fact does not establish defe ndant’s claim that Deputy Bodnar influenced Ibarra to identify defendant from th e photo lineup. It only shows Ibarra was less than 100 percent certain about that iden tification, 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 interv iew shows Ibarra also stated, “the whole face structure, very similar. I mean it’s been over a mont h, 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 th at, you know, facial fe atures, but . . . .”12 Similarly, the transcript of Deputy Bodna r’s interview of Dennis Estevez does not support defendant’s assertion that the depu ty 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 lo oks 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 indicate d he was 50 percent positive about the identification. We will not address each witness id entification because defendant has demonstrated only that the reco rdings of the interviews differ in some respects from some of Deputy Bodnar’s reports; th ey do not show that he impr operly 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 B odnar interviewed each of the witnesses, and that evidence shows defendant’s scenario is not plausible. Therefore, the trial court did not abuse its disc retion when it denied defendant’s Pitchess motion based on defendant’s failure to establish g ood cause for the requested discovery. 3. DISCLOSURE OF JUROR INFORMATION Defendant filed a motion fo r new trial in which he a sserted jury misconduct, among other things. According to the declaration of his atto rney submitted in support of the new trial motion, after trial concluded an d the trial court discharged the jury, about two-thirds of the jury panel stayed and discu ssed the case with the a ttorneys; during that discussion the jurors “collectively stated,” amon g other things, that when the jurors were13 unable to reach verdicts after several days of deliberations, they discussed their observations that throughout the trial, defe nse counsel would talk to defendant after cross-examining prosecution witn esses; “[t]he jurors . . . opined that discussion between [defense counsel] and the defendant would ha ve been unnecessary if the defendant had not been one of the ro bbers”; and after the jury’s discu ssion, at least one juror changed her verdict from not guilty to guilty. In its opposition the prosecution asserted, fi rst, 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 sa id was wrong. According to the prosecutor, who was present and also talked with the ju rors 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 whethe r 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 sh e did not say that they change d their verdicts as a result. The trial court heard defendant’s new tria l motion in conjunction with defendant’s sentencing hearing. At that hearing, the tr ial court asked defense counsel to address the issue of whether her declaration was inadmiss ible 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’s14 seeking.” The trial court denied that request and ultimately denied defendant’s new trial motion. On appeal, defendant characterizes the statement quoted abov e as a motion under Code of Civil Procedure section 237 for disclo sure of juror identifying information. We do not agree, but we will not belabor the poin t, 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 th e jurors who served on the trial is sealed. (Code Civ. Proc., § 237, subd. (a)(2).) A defendant or the defendan t’s attorney may reque st access to that information in order to “communicate with ju rors for the purpose of developing a motion for new trial or any other lawful purpose.” (Code Civ. Proc., § 20 6, 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 supporte d by a declaration that includes f acts sufficient to establish good cause for the release of the ju ror’s personal identifying inform ation. The court shall set the matter for hearing if the petition and supp orting declaration esta blish a prima facie showing of good cause for the release of the personal juro r 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.)15 The trial court denied defendant’s reque st for disclosure of juror identifying information in part because de fendant had not been diligent in making his request. As the trial court observed, defendant had an opportun ity to complete his i nvestigation in order to file a new trial motion. The fact defe nse counsel waited until the hearing on that motion to request disclosure of juror information suggests th at 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 th e jurors outside the courtroom. Despite that knowledge, defense counsel did not immediately report the purpor ted misconduct to the trial court, nor did she ask for contact information from the juro r who reputedly reveal ed the misconduct. Despite the obvious differences, the circumst ances here are equivalent to those in People
v. Carrasco , in which the court stated, in hold ing the trial court did not abuse its discretion in denying disclosure of juror iden tifying information, “What strikes us even more is that defense counsel learned about th e claimed juror misconduct during the trial, before a verdict was entered, and had an op portunity to try to re ctify any problem she perceived. Defense counsel co uld have proposed an additiona l line of inquiry to the trial court if she believed jury mi sconduct had occurred which the court was overlooking. She did not.” ( People v. Carrasco , supra , 163 Cal.App.4th at p. 991.)16 Because defense counsel did not take any action with resp ect 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 an y event, we conclude the trial c ourt did not abuse its discretion by denying defendant’s request to disclose id entifying information ab out 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.