People v. Gutierrez

• Decision Date: 30 October 2003
• Docket Number: No. B160082,B160082
• Citation: 112 Cal.App.4th 1463,6 Cal.Rptr.3d 138
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Christopher Anthony GUTIERREZ, Defendant and Appellant.

6 Cal.Rptr.3d 138

112 Cal.App.4th 1463

The PEOPLE, Plaintiff and Respondent, v. Christopher Anthony GUTIERREZ, Defendant and Appellant.

No. B160082

Court of Appeal, Second District, Division Three

October 30, 2003

Review Denied January 28, 2004

Certified For Partial Publication.^*

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

ALDRICH, J.

I. Introduction

Defendant Christopher Anthony Gutierrez was convicted by a jury of forcible oral copulation and forcible sexual penetration with a foreign object while acting in concert. Prior to trial, Gutierrez moved for Pitchess¹ disclosure of information in the personnel records of the two officers who arrested him. The trial court declined to conduct an in camera hearing, finding Gutierrez had failed to establish good cause as required by Evidence Code section 1043, subdivision (b)(3).

Gutierrez contends that the statutory Pitchess framework, as applied in criminal cases, conflicts with the principles expressed in Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, in violation of his due process rights. According to Gutierrez, the statutory Pitchess procedures (1) impermissibly interfere with the prosecutor's duty to ascertain and disclose material, exculpatory evidence to the defense, and (2) improperly place upon the defendant the burden of establishing good cause for Brady disclosure. Gutierrez further contends that the trial court erred by admitting evidence of his prior conviction pursuant to Evidence Code section 1108, a statute he complains is unconstitutional; admitting hearsay evidence; and instructing the jury with CALJIC Nos. 2.50.02 and 17.41.1.

In the published portion of this opinion, we reject Gutierrez's claims that the statutory Pitchess procedures run afoul of Brady. In the unpublished portion of the opinion, we reject Gutierrez's other claims. Accordingly, we affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts.

On August 12, 2001, shortly before midnight, the victim, Sandra C., was working as a prostitute. Gutierrez and Robert Ruiz were driving in a Honda Civic when they encountered Sandra and agreed to pay her $15 or $20 for sexual services for both of them. Sandra entered the car and directed them to drive to a motel, but Ruiz, who was driving, took her to another location. When Sandra entered the Honda, she stated, "I get paid first." Gutierrez replied, "Shut up, bitch. Bitch, you're going to do what we tell you to do." He put his hand around Sandra's throat and shoved her back into the car, causing abrasions on her shoulder. Gutierrez lowered his pants. Sandra remained huddled in the corner of the car and asked whether Gutierrez was going to hurt her. He replied, "No. As long as you do what we tell you to do." Gutierrez forced her to orally copulate him and digitally penetrated her vagina. From comments made by Gutierrez and Ruiz, Sandra surmised they were armed with a gun. She was afraid of them. Ruiz at one point stated, "What do we do if the cops come[?]" Gutierrez replied, "We'll just blast them. You got your nine?" Ruiz replied affirmatively. When Sandra pleaded to leave and promised not to tell police about the incident, Gutierrez replied, "No. You're just gonna do what we tell to you do [sic]." Ruiz also forced her to orally copulate him while Gutierrez digitally penetrated her anus. Gutierrez then forcibly removed all Sandra's clothing and Ruiz attempted to rape her. Ruiz stated, "Ah, man, she got a good look at our face. What are we gonna do now?" Gutierrez did not reply but forced Sandra to orally copulate him again. During this episode, when Sandra saw the lights of passing cars, she attempted to exit the Honda, but was prevented by Gutierrez.

Officer Jason Schwab of the Los Angeles Police Department and his partner were on patrol in the area and pulled alongside Gutierrez's car. When Schwab illuminated the Honda with a spotlight, Sandra pulled her head from Gutierrez's lap area, jumped from the vehicle, naked and "hysterical," and said, "Help me. They're raping me." She informed Schwab that the men had a gun. When Sandra had raised her head before jumping out of the vehicle, Gutierrez had attempted to push her head back down. According to Schwab, prostitutes normally do not completely disrobe when working in vehicles, in order to make it "harder for vice to try to catch them." Sandra's dress, missing its straps, and her bra were found in the Honda. No gun was discovered. The two men only had $6.10 in cash between them.

Ruiz pleaded guilty to rape in concert in exchange for a three year prison sentence. Part of the plea agreement was that Ruiz would testify truthfully and completely at all future proceedings regarding the incident. Sandra's whereabouts were unknown at the time of trial, and she did not testify. Her statements to Officer Schwab recounting the incident were admitted into evidence as spontaneous statements.

B. Procedure.

Trial was by jury. Gutierrez was found guilty of forcible sexual penetration by a foreign object while acting in concert (Pen.Code, § 264.1)² and two counts of forcible oral copulation (§ 288a, subd. (c)(2)). The jury acquitted Gutierrez of rape while acting in concert, of one count of forcible sexual penetration by a foreign object, and of unlawfully driving or taking a vehicle. In a bifurcated proceeding, the trial court found true allegations that Gutierrez had suffered a prior "strike" conviction for attempted murder (§§ 667 subds.(b) — (i), 1170.12, subds. (a) — (d), 667, subd. (a) (1)). The trial court further found Gutierrez had served one prior prison term within the meaning of section 667.5, subdivision (b). It denied his Romero³ motion to strike a prior conviction allegation and sentenced him to a total term of 55 years in state prison. It also imposed restitution, parole revocation, and other fines. Gutierrez appeals.

III. DISCUSSION

A. California's statutory Pitchess scheme does not infringe upon Gutierrez's due process rights or violate Brady v. Maryland.

1. Additional facts.

Gutierrez filed a pretrial Pitchess motion seeking disclosure of personnel and administrative records of Officer Schwab and his partner, Officer Farell, "concerning any acts involving falsification of testimony, fabrication of evidence, false police reports, perjury, aggressive behavior, racial or gender bias," and actual or attempted violence and excessive force. Defense counsel's supporting declaration averred that the requested discovery was material and relevant because the encounter between Gutierrez and Sandra was consensual; Sandra was alleging rape as a way to avoid prosecution for prostitution; and the arresting officers were "lying when they allege [Gutierrez] was holding the victim's head down forcibly ... in order to bolster victim's rape claim." In his memorandum of points and authorities in support of the requested disclosure, Gutierrez argued, "Pitchess compliance must include and be consistent with the defendant's constitutional right to Brady evidence." The Los Angeles Police Department opposed the motion.

The trial court denied the Pitchess motion because Gutierrez had failed to show good cause. Gutierrez's allegations, the trial court found, amounted to nothing more than a general denial of the charges, and the theory advanced in his moving papers was implausible. The trial court pointed out that officers would have been unlikely to fabricate the fact that Gutierrez held the victim's head down because such action was not an element of the crime.

2. Discussion.

Gutierrez urges that his convictions must be reversed because the trial court failed "to order full disclosure of police officer character evidence under Brady v. Maryland." He does not challenge the trial court's finding that he failed to establish good cause for the disclosure.⁴ INSTEAD, HE CONTENds that the statutory pitchess procedures (sections 832.5, 832.7, 832.8, and Evidence Code sections 1043 and 1045) unconstitutionally infringe upon his due process rights in three respects. First, he asserts, "Brady dictates more generous discovery than Pitchess," and to the extent the statutory Pitchess scheme shields Brady evidence from disclosure, the Pitchess provisions are invalid. Second, he posits that Brady imposes upon prosecutors a duty to examine the personnel records of "all significant police officer witnesses" and disclose any exculpatory or impeaching information. The statutory Pitchess procedures, he complains, undercut the prosecutor's ability to carry out these duties. Third, he argues the statutory scheme impermissibly burdens a defendant by requiring that he or she establish good cause for disclosure of information that the prosecutor is already under a duty to disclose. For these reasons, he contends, the Pitchess procedures are unconstitutional when applied in criminal cases. We disagree.⁵ Gutierrez's claims are foreclosed by the California Supreme Court's recent decisions in City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1, 124 Cal.Rptr.2d 202, 52 P.3d 129 (Brandon) and Alford v. Superior Court (2003) 29 Cal.4th 1033, 130 Cal.Rptr.2d 672, 63 P.3d 228.

a. Brady disclosure.

Under Brady, supra, 373 U.S. at page 87, 83 S.Ct. 1194, a prosecutor must disclose any evidence that is favorable to the defendant and material on the issues of guilt or punishment. (Brandon, supra, 29 Cal.4th at p. 7, 124 Cal.Rptr.2d 202, 52 P.3d 129; People v. Jordan (2003) 108 Cal.App.4th 349, 358, 133 Cal.Rptr.2d 434.) The Brady disclosure obligation encompasses both impeachment and exculpatory evidence, and exists regardless of whether the defendant makes a specific request for the information. (Strickler v....