People v. Peyton

• Decision Date: 16 September 2014
• Docket Number: 2d Crim. No. B248767
• Citation: 177 Cal.Rptr.3d 823,229 Cal.App.4th 1063
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lee Edward PEYTON, Defendant and Appellant.

229 Cal.App.4th 1063

177 Cal.Rptr.3d 823

The PEOPLE, Plaintiff and Respondent,

v.Lee Edward PEYTON, Defendant and Appellant.

2d Crim. No. B248767

Court of Appeal,

Second District, Division 6, California.

Filed September 16, 2014

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 279.

David Hirsch, Judge, Superior Court County of Ventura. (Super. Ct. No. 2010002126) (Super. Ct. No. 2011023496) (Ventura County)

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.

YEGAN, J.

Lamenting the delays associated with the orderly processing of criminal cases, Justice Macklin Fleming explained a popular way for a criminal defendant to avoid, or at least delay trial: “sidetracking.” He describes this as diverting “the inquiry into a collateral issue.... In the operation of a railway system to sidetrack a train is to switch it from the main line to a siding. In criminal law to sidetrack a cause is to divert the accusation from the pending issue [guilt or innocence] to some other issue, any issue, and then keep the prosecution [or the trial court] so occupied in litigating the side issue that the hearing of the accusation itself comes to a halt.” ( The Price of Perfect Justice, Basic Books, Inc, (1994) at p. 54.)

Appellant is the poster boy for sidetracking. As we shall explain, the principal sidetrack diversionary tactic was attacking the trial judge, Hon. David Hirsch. But there were other sidetracking diversionary tactics leading to numerous hearings. The central theme, however, was constant, i.e. personal attacks upon the integrity and honesty of other judges (at p. 5), the prosecutor (at pp. 9–10) and the investigating detective (at p. 13) as well as other law enforcement personnel and other attorneys.

Judge Hirsch was extraordinarily patient even though appellant attacked his integrity in numerous contentious filings and hearings. Judge Hirsch and other superior court judges before whom appellant appeared were undeterred from affording appellant a fair trial in which he received due process in all its facets. We praise these judges, but with the benefit of hindsight we suggest there is a limit to which a defendant may squander public funds, stretch the use of court time to multiples of what is reasonable, and misuse judicial resources. In such cases, trial judges may lawfully terminate defendant's pro per status and bring to an end what can be characterized as his shenanigans. (See, infra, pp.18–19.)

The instant sidetracking is striking in terms of the expenditure of time, public funds, and judicial resources. Appellant was charged with three pedestrian felonies. It took over three years in court to get to judgment. The record on appeal is in excess of 8000 pages. It appears to us that “lacking any defense on the merits, defendant was simply playing a game with the court by being as awkward and difficult as possible, hoping for a reversal on some technical grounds.” (People v. Hill (1968) 268 Cal.App.2d 504, 511, 74 Cal.Rptr. 180.) We observe that his game of “waive the lawyer” (see People v. Weston (1970) 9 Cal.App.3d 330, 334, 87 Cal.Rptr. 922) was his springboard to his overall tactic to be as difficult as possible. Defiant to the end, appellant's last words to the trial court were: “When I reverse you on appeal, I will make sure to rub it in your face.”

Lee Edward Peyton was convicted by jury of two counts of receiving stolen property (counts 1 & 3; Pen.Code, § 496, subd. (a)) ¹ and one count of identity theft (count 2; § 530.5). He admitted suffering a prior strike conviction (§§ 667, subds.(b)-(i); 1170.12, subds. (a)-(d)) and two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced him to ten years eight months state prison. He appeals. We affirm.

Counts One and Two—Receiving Stolen Property and Identity Theft

Counts 1 and 2 arise from an October 14, 2009 Ojai auto burglary. Someone smashed Kathleen McAuliffe's van window and took her purse, cellphone, iPod, wallet, and Wells Fargo ATM card. The purse had an address book that listed her ATM identification number.

Two hours later and 30 miles away, appellant withdrew $300 from a Wells Fargo ATM in Ventura using McAuliffe's ATM card. The ATM system videotaped the transaction and purged the video after it extracted and saved still photos. Appellant was identified as the person in the ATM photos.

Count Three—Receiving Stolen Property

Count three arises from a November 4, 2009 auto burglary in Matilija Hot Springs near Ojai. Gilbert Manchego and his girlfriend were walking back to their car and saw a man “lurking” near it. The man ran to an older Chevrolet truck with distinctive primer spots and drove off. Manchego discovered his car window smashed and that a cell phone, red CD case, and CDs were missing. Manchego said appellant's Chevy truck looked like the truck that fled from this auto burglary.

Police Investigation of Appellant

Detective Victor Medina went to Benjamin Kennedy's house because appellant lived with him. Kennedy told the police about a red CD case that appellant stole from a car and hid under Kennedy's couch. The police recovered the red CD case taken in the Manchego auto burglary. They seized other stolen purses and conducted a probation search of Reyes Estrada, appellant's friend. Estrada's cell phone had text messages from “Lee” that were sent from Kennedy's phone. An October 27, 2009 text said “got a lick [i.e., auto burglary] lined up.” On October 28, 2009, Lee texted “Got a lick in progress—and some cash.” Kennedy confirmed that appellant was using his cell phone.

Arrest, Refusal to be Photographed, Trial Theory

After appellant was arrested for receiving stolen property and identity theft, he was ordered to submit to photographs of his face and head to facilitate a comparison with the ATM photos. Appellant refused to be photographed. At trial he defended on the theory of misidentification.

Caperton Motion to Recuse Trial Judge

Appellant argues that the denial of his November 6, 2012 Caperton motion (Caperton v. A.T. Massey Coal Co, Inc. (2009) 556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (Caperton )) to disqualify Judge Hirsch violated his due process right to a fair trial. Before that, appellant filed a series of motions and “attacks” on Judge Hirsch. We recount them in detail because they bring the November 6, 2012 Caperton motion into perspective.

After the case was assigned to Judge Hirsch for trial in January 2012, appellant filed the following objections and motions to disqualify him.

1. A peremptory challenge (Code Civ. Proc., § 170.6) on February 16, 2012 that was denied as untimely.

2. A March 1, 2012 motion to disqualify for cause (Code Civil Proc., § 170.1) alleging that Judge Hirsch was groomed in the art of judicial corruption and had a direct, personal, and substantial interest in convicting appellant. After Judge Hirsch filed an answer, a San Bernardino superior court judge denied the motion on the ground that appellant's claims were conclusory and devoid of facts.

3. An April 17, 2012 motion to disqualify for cause (Code Civ. Proc., § 170.1.) and a Caperton motion to recuse on due process grounds. Appellant claimed that Judge Hirsch had previously recused himself and was disqualified from hearing the case. The motion was stricken on April 17, 2012 on the ground that it was factually inaccurate and untimely, disclosed no legal grounds for disqualification, and was duplicative of the prior motions.

4. An April 18, 2012 “Objection to Judge Hirsch” for judicial misconduct, retaliation, arbitrary and capricious action, and judicial bias in violation of the due process clause. The motion stated that appellant had filed a complaint with the Commission on Judicial Performance and that Judge Hirsch and another judge improperly denied appellant's request for co-counsel. The motion was stricken for lack of service and because it disclosed no legal ground for disqualification.

5. A May 10, 2012 “Motion Requesting the Master Calendar Court to Take Judicial Notice and Declare the Constitutional Rights of the Defendant.” The motion stated that Judge Hirsch should be recused on due process grounds because he was biased and because appellant had filed a civil complaint against him.

6. On May 21, 2012, appellant filed copies of his Commission of Judicial Performance complaints against Judge Hirsch and Ventura Superior Court Judges James Cloninger, Ryan Wright, Kevin DeNoce, and Donald Coleman. Appellant also claimed that Judge Hirsch's rulings were arbitrary and retaliatory and that Judge Hirsch should be recused pursuant to Caperton.

7. On May 21, 2012, Judge Hirsch denied appellant's section 995 motion. At the end of the hearing, appellant threatened to file a civil rights action against Judge Hirsch and accused the court of being hostile, arbitrary and retaliatory. Appellant argued that “based on my lawsuit, you being a defendant, you cannot be the judge. [¶] ... [¶] My last objection is based on your judicial bias with regard to my lawsuit.... I will be making sure that the United States marshal for the federal district court does serve you as soon as possible with my federal lawsuit against you.”

8. On June 11, 2012, appellant filed a “Statement of Disqualification of Judge Hirsch” (Code Civ. Proc., §§ 170.1, 170.3) alleging actual conflict of interest and bias by Judge Hirsch. Appellant requested that Judge Hirsch be recused on due process/Caperton grounds. Ventura County Superior Court Judge Donald Coleman denied the motion on the ground that it had been heard before, was not timely, and failed to state facts for Judge Hirsch's disqualification. The court stated: “Mr. Peyton, you're a...