THE PEOPLE v. KORVETTE ROGERS

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. KORVETTE ROGERS, Defendant and Appellant.

B222703

Decided: January 24, 2011

Eric Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Charles S. Lee, Deputy Attorney General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A jury convicted Korvette Rogers of one count of resisting a police officer.   Rogers appeals, arguing that the trial court erred when it delayed its ruling on the use of his prior convictions until after he testified, and in imposing prior prison term enhancements.   Rogers also argues that this court should reexamine the records examined in camera regarding his Pitchess motion.   We conditionally reverse and remand with directions.

BACKGROUND

An amended information charged Rogers with three counts of assault upon a police officer in violation of Penal Code section 245, subdivision (c) 1 (counts 1, 2, and 4), and two counts of resisting an executive officer, in violation of section 69 (counts 3 and 5).   The information also alleged that Rogers had served four prior prison terms within the meaning of section 667.5;  that Rogers had a prior conviction of a serious felony under sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i);  and that under section 667, subdivision (a)(1), a prior serious felony enhancement applied to counts 1, 2, and 4.

Rogers pleaded not guilty to all counts.   After trial, a jury found Rogers guilty of count 3 (resisting Officers Ortiz and Pacheco) and not guilty of the four other counts.2  Rogers waived a jury trial on his prior convictions and admitted to his prior convictions.

The court sentenced Rogers to seven years in state prison, doubling the mid-term of two years and imposing an additional one year each for three of Rogers's prior prison terms, imposing but staying an additional year for the fourth prior prison term.   The court also imposed fines and fees, and gave Rogers a credit of 692 days.   Rogers filed this timely appeal.

FACTS

In the evening of November 18, 2008, Los Angeles Police Department Officers Sergio Ortiz and his partner Adolfo Pacheco were on patrol in their police vehicle in the Skid Row area of Los Angeles.   The officers were part of the Safer Cities Initiative Task Force, which targeted “homeless specific problems” such as public drunkenness, narcotics, sleeping on the street, blocking the streets, and jaywalking, and trained officers to refer the homeless to social services.   Near the intersection of San Julian Street and 5th Street, they saw Rogers sitting on the curb with his feet extended into the street.   Officer Ortiz yelled at Rogers to get out of the roadway, and Rogers responded “ ‘Fuck you, mother fucker,’ ” clenching his fist.

Officer Ortiz got out of the police car and drew his baton.   Officer Pacheco followed Officer Ortiz out of the car.   Rogers jumped up and grabbed a three-foot piece of wood with nails protruding from it and took a batting stance, swinging twice at the officers.   Officer Ortiz drew his gun, pointed it at Rogers, and told him to drop the stick and step back.   Rogers held on to the stick and backed up towards a fence, yelling at the officers that they would have to shoot him.

Two officers from a second unit, Officers Hernandez and Riojas, also drew their weapons, and as they approached Rogers, he dropped or tossed the stick and took a fighting stance, fists clenched.   Officer Ortiz told Rogers to turn around and put his hands behind his back.   When Officer Riojas touched Rogers's wrist, Rogers lunged forward and punched Officer Ortiz in the chest three times.   Officer Ortiz punched Rogers in the face, grabbed his jacket, and with the other officers brought Rogers to the ground.   Rogers continued to resist, assuming a fetal position, throwing his elbows out, and kicking as the officers tried to handcuff him.   Officer Ortiz hit Rogers's right side, and was able to handcuff him.   Rogers refused medical treatment.   Officers Ortiz, Pacheco and Riojas all testified at trial.

Rogers testified that on the evening of November 18, 2008, he was sitting on the curb because he was tired and homeless.   Rogers had the board across his lap because he was afraid someone would jump him.   The police car drove up and Officer Ortiz jumped out and drew his weapon.   Rogers jumped up, the board fell off his lap, and he went up against the fence with his hands up as Officer Pacheco, holding a baton, and the other two officers, guns drawn, moved toward him.   The officers never explained why they approached Rogers.   Officer Pacheco handcuffed Rogers's left hand, and Officer Ortiz went for Rogers's right hand and punched Rogers in the eye.   Officer Ortiz punched Rogers steadily in the ribs while Rogers asked why the officers were beating him up.   The officers finally handcuffed Rogers behind his back.   Rogers thought Officer Ortiz was going to kill him.

DISCUSSION

I. Rogers's right to testify was not compromised by the court's delayed ruling on the introduction of Rogers's prior convictions for impeachment purposes.

Rogers argues that his right to testify in his own behalf was compromised, because the court delayed its ruling on whether Roger could be impeached with his prior convictions until after Roger's direct testimony.   Roger did not raise this issue in the trial court and so has forfeited this issue on appeal.   In any event, we agree with People v. Washington (1989) 211 Cal.App.3d 207, that the trial court did not abuse its discretion in delaying its ruling.

Before Rogers testified in his own behalf, defense counsel asked the trial court to rule whether the prosecution could introduce, for impeachment purposes, three of Rogers's prior convictions.   The defense requested that one of the prior convictions (for battery on a noninmate) be excluded because it was not a crime of moral turpitude.   The defense conceded that the two other prior convictions (robbery and grand theft) involved moral turpitude, and were admissible as impeachment evidence.   The court responded:  “Thank you.  [¶] The court is not required to determine at this stage what priors it will allow the People to use for impeachment, but rather to wait until it is the People's opportunity to cross-examine.   I am going to choose to wait.”

After Rogers testified on direct examination, the court stated:  “With regard to the priors, I have reviewed the criminal history sheet.   I am going to exercise my discretion under Evidence Code section 352 to allow you to inquire about three of his priors.  [¶] The conviction [for battery on a noninmate] occurs in between the other two.   The date is important because it reflects the theft conviction is not remote in the sense he wasn't free of criminal convictions for a substantial point thereafter.  [¶] There is a major distinction between the nature of that offense and the nature of this offense or these charges in that no peace officer is listed as the victim, where this is clearly the case of charges of attack on a peace officer.”   The trial court denied the defense request to sanitize the conviction for battery on a non-inmate, because “I do see a distinction between the two types of crimes.”

On cross-examination, the prosecutor asked Rogers about the three prior convictions, and Rogers admitted them.   On redirect, Rogers's counsel pointed out that Rogers “took a deal” and did not go to trial on each of his three prior convictions, contrasting that to Rogers's decision to go to trial in this case.   In closing argument, the prosecutor suggested that because of Rogers's three prior felonies, the jury should believe the officers rather than Rogers:  “He is a convicted felon, and he has lied to you on the stand.”

Rogers never asked for an immediate ruling on the use of his prior convictions, nor did he object to the trial court's announcement that it would delay its ruling until after he testified.   He has therefore forfeited a challenge on appeal, whether on procedural or constitutional grounds.   (People v. Jenkins (2000) 22 Cal.4th 900, 1000;  People v. Burgener (2003) 29 Cal.4th 833, 869.)

We note, however, that in People v. Washington, supra, the Court of Appeal faced a similar challenge and concluded that the trial court may delay a ruling on the admissibility of a prior conviction until after the defendant's testimony.   At a pretrial hearing, the defendant moved to exclude for impeachment purposes evidence of three prior convictions.   Although the defendant (unlike Rogers) “insisted upon his right to a ruling prior to trial,” the trial court ruled that it would delay its ruling on the defendant's motion to exclude until after the defendant testified.  (211 Cal.App.3d at p. 210.)   The defendant did not testify.

The Court of Appeal noted that “such a postponement is unusual,” and that the usual procedure is to include “the chance that the defendant will not testify as one of the four factors a trial court should use when weighing the relative prejudice and probative value of a prior conviction sought to be used for impeachment purposes․  This should mean that a trial court must consider the effects of admission of priors for impeachment on a defendant's decision to testify, and must not force the defendant to testify before engaging in the discretionary weighing process mandated by [People v. Castro (1985) 38 Cal.3d 301, 312].”  (People v. Washington, supra, 211 Cal.App.3d at p. 212.)  “[I]mportant considerations” favored requiring the trial court to rule on the admissibility of prior convictions before the defendant testifies, including the defendant's constitutional right to testify on his own behalf.   (Ibid.) “[A] defendant cannot knowingly and intelligently assess the risks and benefits of presenting his side of the story without knowing whether the trier of fact will learn of his past crimes.”  (Id. at p. 213.)   Further, in many cases there will be no need for the trial court to hear the defendant's testimony before deciding whether a prior conviction will be more probative than prejudicial.  (Ibid.)

Despite these reasons, the Court of Appeal declined to impose a requirement that the trial court rule before testimony by the defendant.   The California Supreme Court had stated that to balance the probative value against the prejudicial effect of a prior conviction, the trial court “ ‘ “must know the precise nature of the defendant's testimony, which is unknowable when ․ the defendant does not testify.” ’ ”  (People v. Washington, supra, 211 Cal.App.3d at p. 213, quoting People v. Collins (1986) 42 Cal.3d 378, 384.)  “[N]either Collins nor Luce [v. United States (1984) 469 U.S. 38, upon which Collins relied] contains any genuine analysis of the issue whether a trial court should be permitted to postpone a ruling on the admissibility of prior convictions until after the defendant has testified.   Nonetheless, we cannot help but conclude that the courts in both cases deliberately permitted such a postponement.   While this is not the customary practice and in our view should not be encouraged, it would exceed our authority to hold that a California trial judge cannot do that which our own high court and that of the United States have manifestly authorized.   [Citation.]”  (Washington, at p. 214.)

The trial court's decision to delay ruling on the admissibility of Rogers's prior convictions was permissible under the reasoning in Washington.   If Rogers had not forfeited the issue by his failure to object, we would conclude that it was not an abuse of discretion to postpone the ruling until after Rogers had testified.

Moreover, we can see no prejudice resulting from the trial court's chosen procedure.   He argues that if he had known the prior convictions would be admitted, he might have decided not to testify at all, and “[t]he prosecution would not have been able to impeach with the priors.”   If Rogers had not testified, however, the only evidence would have been the testimony of Officers Ortiz, Pacheco, and Riojas, all of whom testified that Rogers violently resisted the officers.   Even though Rogers testified before the trial court admitted the prior convictions, the jury acquitted him on four of the five counts.   The only evidence in Rogers's defense was his own testimony, and he does not demonstrate how he would have been in a better position if he had not testified.3  The timing of the court's ruling was therefore harmless under any standard.  (See People v. Watson (1956) 46 Cal.2d 818, 836;  Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].)

II. Rogers admitted his prior prison terms.

Rogers argues that his three one-year enhancements for prior prison terms should be stricken because he did not specifically admit serving separate state prison terms for each one.   The totality of the circumstances, however, shows that Rogers did admit serving prior prison terms.

The amended information alleged that Rogers had four prior felony convictions and “a term was served as described in Penal Code section 667.5 for said offense[s], and ․ the defendant did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term.”   Rogers admitted to three of the four convictions during his testimony at trial.   After closing arguments and outside the presence of the jury, the trial court asked the prosecutor to take Rogers's waiver of a jury trial on “the priors.”   The prosecutor asked Rogers:  “[Y]ou have the right to have a jury trial concerning the prior allegations of prison confinement that you have been charged under.   It is my understanding you want to waive that right?”   Rogers answered yes.   The prosecutor continued:  “Do you understand you have the right to present evidence, cross-examine the witnesses against you, call witnesses, use the subpoena power of the court at no cost to yourself and present a defense?   You have all those rights for your priors to be heard before a jury.   Do you understand that?”   Rogers again answered yes.   The prosecutor asked Rogers, “Do you waive that right in this case?” and Rogers answered yes, with his counsel joining in the waiver.   The court found that “Rogers has knowingly, understandingly and intelligently waived his right to a trial by jury on the priors.”

At the sentencing hearing, the court stated:  “We put the court trial on the priors for today.   I understand he is going to admit one or more priors.   There are a total of four priors alleged, one strike.   Four priors under 667.5(b).  [¶] Is he going to be admitting all of those?”   Rogers's counsel replied, “After speaking with Mr. Rogers, he wants to admit the priors.”   The court then asked Rogers about each conviction, and Rogers waived his right to a court trial on each of the four.   Rogers's counsel joined, as did the prosecutor.   The court described a court trial and the rights Rogers was waiving, and asked, “Having all that in mind, is it indeed your wish to waive your right to a court trial on the priors and to admit them?”   Rogers responded yes.   The trial court asked, “Does counsel join in the waiver, concur in the admission, stipulate to a factual basis relying on the document presented from probation and the department of corrections?”   Rogers's counsel answered yes.   The trial court found that Rogers had intelligently and understandingly waived his right to a court trial, and that his waiver and admission were free, voluntary, “and with an understanding of the nature and consequences thereof.  [¶] The court finds a factual basis and accepts the waiver and the admission.”   The court added three additional years, one year for each of three of Rogers's “prison commitment[s],” and stayed a fourth year on the remaining prior.

Section 667.5, subdivision (b) requires imposition of a one-year sentence enhancement for each prior separate prison term the defendant has served for a prior felony conviction (unless the defendant has stayed free of prison custody, and has not committed a offense for which he received a felony conviction, in the five years following the end of the prison term).   No enhancement may be imposed if a prior felony conviction did not result in a prior separate prison term, which is “a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes ․“ (§ 667.5, subds. (e), (g).)  The prosecution must establish that the defendant (1) was previously convicted of a felony;  (2) was imprisoned as a result;  (3) completed the prison term;  (4) and did not remain free for five years of both prison custody and the commission of a new offense resulting in conviction of a felony.  (People v. Tenner (1993) 6 Cal.4th 559, 563.)   In reviewing whether sufficient evidence supported the trial court's finding on the section 667.5, subdivision (b) enhancements, we view the record in the light most favorable to the trial court's finding to determine “whether a reasonable trier of fact could have found that the prosecution ․ sustained its burden of proving the defendant guilty beyond a reasonable doubt.”  (Tenner, at p. 567.)   We will affirm the sentence enhancements if, after evaluating the totality of the circumstances surrounding the defendant's admission of the sentencing enhancement allegations, the record affirmatively shows that the admission was voluntary and intelligent.  (People v. Mosby (2004) 33 Cal.4th 353, 360.)

“Generally, an admission of prior convictions where the charging information specifically alleges the convictions resulted in prior separate prison terms is deemed an admission such prison terms were separately served.”  (People v. Cardenas (1987) 192 Cal.App.3d 51, 61.)   The amended information specifically charged that Rogers served a prison term for the four prior convictions listed (“a term was served as described in Penal Code section 667.5 for said offense(s)”).  Rogers admitted during his testimony that he had three prior convictions.   Later, the prosecutor asked Rogers whether he waived “a jury trial concerning the prior allegations of prison confinement that you have been charged under.”  (Italics added.)   During the sentencing hearing, at which Rogers waived his right to a court trial and admitted the four priors, the trial court referred again to section 667.5 and asked Rogers whether he stipulated to the facts in the probation report and the report from the corrections department.

The record shows that the amended information advised Rogers of the elements of a section 667.5 enhancement allegation, which requires separate prison terms;  Rogers testified that he had four felony convictions;  the prosecution referred to “prison confinement” allegations before Rogers waived his right to a jury trial on the section 667.5 allegations;  and the trial court referred again to section 667.5 in taking Rogers's waiver of a court trial and his admission to the four prior convictions.   Rogers's counsel concurred in each waiver, specifically stating that he had talked to Rogers about his admission of the priors.   Under the totality of the circumstances, this is sufficient evidence that Rogers, through his counsel, knew the elements of section 667.5 and knowingly admitted that he had served prior separate prison terms for his felony convictions.4  The trial court properly imposed the section 667.5 enhancements.

III. The record on the Pitchess motion is inadequate and requires remand.

Rogers filed a pretrial motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531.   At a hearing on May 5, 2009, the trial court granted the motion.   The court reviewed the pertinent records in camera with the custodian of records, found “one hit” and ordered the city attorney to provide discovery to Rogers by the next court date.   Rogers asks us independently to review the materials provided to the trial court to ensure that he received “all potentially relevant information.”

“[B]oth Pitchess and the statutory scheme codifying Pitchess require the intervention of a neutral trial judge, who examines the personnel records in camera, away from the eyes of either party, and orders disclosed to the defendant only those records that are found both relevant and otherwise in compliance with statutory limitations.”  (People v. Mooc (2001) 26 Cal.4th 1216, 1227.)   A trial court's ruling on a Pitchess motion will not be disturbed unless the trial court abused its discretion.  (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)

We have reviewed Rogers's Pitchess motion and the sealed reporter's transcript of the in camera portion of the Pitchess proceeding.   The trial court, on the record, described the documents and discussed them with the custodian of records.  (People v. Mooc, supra, 26 Cal.4th at p. 1229 [to permit future appellate review, court may “simply state for the record what documents it examined”].)   The court confirmed that certain information in one file should be disclosed subject to a protective order, and determined that the remainder of the files did not contain discoverable information.

DISPOSITION

The judgment is conditionally reversed.   The cause is remanded to the trial court with directions to hold a new hearing on the Pitchess motion as described herein.   If the trial court finds that there is discoverable material, the trial court shall grant discovery, allow Rogers an opportunity to demonstrate prejudice, and order a new trial if prejudice is demonstrated.   If the court finds no discoverable material, or finds discoverable material but Rogers cannot establish he was prejudiced by the denial of discovery, the judgment shall be reinstated as of that date.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. The jury acquitted Rogers of both counts (4 and 5) related to an incident at the Men's Central Jail on December 3, 2008, in which Rogers was alleged to have assaulted a sheriff's deputy in the stairwell while Rogers was on his way to a medical appointment..  FN2. The jury acquitted Rogers of both counts (4 and 5) related to an incident at the Men's Central Jail on December 3, 2008, in which Rogers was alleged to have assaulted a sheriff's deputy in the stairwell while Rogers was on his way to a medical appointment.

FN3. In fact, Rogers's trial counsel stated at sentencing “he was found guilty of only one count in this case.   The jury believed his side of the story.”.  FN3. In fact, Rogers's trial counsel stated at sentencing “he was found guilty of only one count in this case.   The jury believed his side of the story.”

FN4. When the trial court took Rogers's admission to the section 667.5 enhancements at the sentencing hearing, it explicitly referred to the probation report, which reflects that Rogers served a separate prison sentence on each of the three prior convictions for which the court imposed a section 667.5 one-year enhancement.   After his probation was revoked in December 1996, Rogers was sentenced to two years in state prison for a 1995 conviction for grand theft from person under section 487, subdivision (c).  In June 1998, Rogers was sentenced to two years in state prison for a conviction of battery by prisoner under section 4501.5, to run concurrently.   In September 2004, Rogers was sentenced to two years in state prison for robbery under section 211.   The report is hearsay and Rogers did not consent to its consideration, so that the information in the report is not properly included in our consideration whether the totality of the circumstances show that the prosecution established the necessary elements required for the section 667.5 enhancements.   We point out, however, that the trial court's explicit reference to the report may explain why, in taking Rogers's admissions, the court and the prosecutor did not elicit more detail..  FN4. When the trial court took Rogers's admission to the section 667.5 enhancements at the sentencing hearing, it explicitly referred to the probation report, which reflects that Rogers served a separate prison sentence on each of the three prior convictions for which the court imposed a section 667.5 one-year enhancement.   After his probation was revoked in December 1996, Rogers was sentenced to two years in state prison for a 1995 conviction for grand theft from person under section 487, subdivision (c).  In June 1998, Rogers was sentenced to two years in state prison for a conviction of battery by prisoner under section 4501.5, to run concurrently.   In September 2004, Rogers was sentenced to two years in state prison for robbery under section 211.   The report is hearsay and Rogers did not consent to its consideration, so that the information in the report is not properly included in our consideration whether the totality of the circumstances show that the prosecution established the necessary elements required for the section 667.5 enhancements.   We point out, however, that the trial court's explicit reference to the report may explain why, in taking Rogers's admissions, the court and the prosecutor did not elicit more detail.

ROTHSCHILD, Acting P. J. CHANEY, J.