California Court of Appeal Jan 22, 2016 No. E061504Unpublished
Filed 1/22/16 P. v. Garron 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Appellant, E061504
v. (Super.Ct.No. RIF1302230)
STEVEN DOUGLAS GARRON, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge.
Affirmed.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Kristen
Hernandez, Deputy Attorneys General, for Plaintiff and Respondent.
Michael A. Hestrin, District Attorney, Matt Reilly, and Alan D. Tate, Deputy
District Attorneys, for Plaintiff and Appellant.
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Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Defendant and appellant Steven Douglas Garron, Jr., appeals his robbery
conviction, and plaintiff and appellant the People appeal the dismissal of a second
The due process clause of the Fourteenth Amendment requires law enforcement
agencies to preserve exculpatory evidence “that might be expected to play a significant
role in the suspect’s defense.” (Trombetta, supra, 467 U.S. at pp. 488-489; People v.
Beeler (1995) 9 Cal.4th 953, 976.) When evidence is only potentially useful to the
defense, the state’s failure to preserve the evidence does not violate due process unless
“ ‘the police themselves by their conduct indicate that the evidence could form a basis for
exonerating the defendant’ [citation] and [nevertheless] fail to preserve it.” (Alvarez,
supra, 229 Cal.App.4th at p. 777, quoting Youngblood, supra, 488 U.S. at p. 58 [where
defendant asked an officer at the scene of the crime to watch the surveillance video
because it would show he did not participate in the robbery, failure to obtain the video
constituted a violation of the duty to preserve potentially exculpatory evidence].) “Thus,
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there is a distinction between Trombetta’s ‘exculpatory value that was apparent’ criteria
and the standard set forth in Youngblood for ‘potentially useful’ evidence.” (Alvarez,
supra, 229 Cal.App.4th at p. 773.)
Contrary to the district attorney’s contention, the Youngblood standard does not
require a finding that law enforcement acted with a “positive intent actually to harm.” As
the court explained in Alvarez, the standard simply requires a finding that law
enforcement recognized the potentially exculpatory value of the evidence it failed to
preserve. (People v. Beeler, supra, 9 Cal.4th at p. 976 [the duty to preserve “ ‘necessarily
turn[s] on the police’s knowledge of the exculpatory value of the evidence at the time it
was lost or destroyed’ ”].)
Here, even though the court and the parties did not have the opportunity to view
the Walmart surveillance video, the evidence was potentially useful to defendant based
on the deputy’s testimony that he could not tell from the video whether defendant was
holding a gun. As the court reasoned, defendant was deprived of letting the jurors
determine for themselves whether the video showed a gun. If, like the deputy, the jurors
could not determine whether the gleam in defendant’s hand was a gun, it is possible they
would have found the prosecution had not proven the elements of robbery beyond a
reasonable doubt. Thus, the court properly employed the Youngblood standard.
The deputy testified that after viewing the video he booked it into evidence under
petty theft, and not robbery. He also admitted he had considered the case a “go-nowhere”
case. The trial court assessed the deputy’s credibility and found that his assessment of
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the case as a petty theft indicated he recognized the potentially exculpatory value of the
video. That the deputy booked the video under petty theft, even though the victim of the
alleged robbery told him at the scene of the crime that defendant had probably used a
gun, reasonably supports a finding that he saw the video as having exculpatory value.
This perception of the video’s value, coupled with the failure to preserve the video,
constitutes a failure of the duty to preserve potentially exculpatory evidence under
Youngblood.
We agree with the district attorney that the deputy did not act with malicious intent
and the worst that can be said of his destruction of the video is that it constituted a lapse
in judgment. However, malicious intent is not required under Youngblood. As the
reviewing court, we cannot reweigh the evidence and must defer to the trial court on
issues of credibility. (E.g., People v. Lindberg (2008) 45 Cal.4th 1, 27.) Based on the
deputy’s testimony, the court could reasonably find that the deputy recognized the
potentially exculpatory value of the video before intentionally, though not maliciously,
destroying it.
B. The Count 2 Intent Instruction
A trial court’s evidentiary rulings are reviewed for abuse of discretion. (People v.
Rogers (2013) 57 Cal.4th 296, 326.) Under this standard, reversal is not required
“ ‘ “unless the trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice.” ’ ” (Ibid.)
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Defendant argues the court’s intent instruction was erroneous because intent was
not actually in issue and because count 2 was not sufficiently similar to count 1.
Defendant also argues that use of the count 2 evidence for intent was unduly prejudicial
because his guilt hinged on Edeza’s identification and because there was a high risk that
the jury would view the count 2 evidence as evidence of his criminal propensity. While
we agree intent was not actually disputed, we conclude the count 2 evidence was
nevertheless admissible for intent because defendant’s not guilty plea placed intent in
issue. We further conclude defendant was not unduly prejudiced by the court’s intent
instruction because the jury had already heard the evidence and because the court
mitigated the risk of prejudice by admonishing the jury not to consider the evidence as
character or propensity evidence.
A defendant’s not guilty plea places each element of the crime in issue. (People v.
Balcom (1994) 7 Cal.4th 414, 422.) The “least degree of similarity” between the
uncharged and charged crimes is sufficient to support the use of the uncharged crimes as
circumstantial evidence of intent under Evidence Code 1101, subdivision (b). (People v.
Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) The crimes must be similar enough “to
support the inference that the defendant ‘ “probably harbor[ed] the same intent in each
instance.” ’ ” (Ibid.) Even uncharged crimes that are not “particularly similar” to the
charged crime are admissible if they are similar in one “crucial” regard: “[T]he intent to
steal from victims whom defendant selected.” (People v. Jones (2011) 51 Cal.4th 346,
371 (Jones).)
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Here, the Walmart and ATM incidents, while also not particularly similar, share
this basic similarity of intent to steal from selected victims. Moreover, in each instance,
defendant acted at night, wore a black sweatshirt and a black baseball hat (presumably to
obstruct his face and reduce the chances of being identified), and used a gun to scare his
victims into letting him run off with their property.
Defendant argues that because intent was not actually in dispute (though
technically in issue), the count 2 evidence is inadmissible. We agree intent was beyond
dispute in this case; however, that does not make the evidence inadmissible; rather, it
makes it cumulative and reduces its probative value. (Ewoldt, supra, 7 Cal.4th at p. 406;
People v. Balcom, supra, 7 Cal.4th at p. 422 [probative value is diminished when the
other crimes evidence is admitted to prove something that, based on the evidence, is
“beyond dispute”]; see also People v. Balcom, supra, 7 Cal.4th at pp. 422-423 [probative
value of the uncharged rape was low on the issue of the defendant’s intent to commit the
charged rape because “the victim’s testimony that defendant placed a gun to her head, if
believed, constitutes compelling evidence of defendant’s intent”].)
In Jones, supra, 51 Cal.4th 346, where the evidence demonstrated that the
perpetrator bound and stabbed to death his robbery victims, our Supreme Court rejected
the same argument from the defendant, stating: “ ‘[T]he prosecution’s burden to prove
every element of the crime is not relieved by a defendant’s tactical decision not to contest
an essential element of the offense. . . . Defendant’s assertion that his defense to the
[robbery charge] was bound to focus upon identity, and not intent, would not eliminate
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the prosecution’s burden to establish both intent and identity beyond a reasonable doubt.
[Citation.] The trial court properly exercised its discretion to admit this limited evidence
for [the] limited purpose [of intent].’ ” (Id. at p. 372.) Similarly here, defendant’s trial
theory was that he was misidentified as the perpetrator, but defendant’s not guilty plea
placed all of the elements of the robbery in issue, including intent. Thus, we find that the
court’s instruction properly allowed the jury to consider the count 2 evidence for intent
purposes.
Turning to the prejudicial impact of the count 2 evidence under Evidence Code
section 352, defendant argues there was an extremely high risk that the jury “would rely
on [his] conceded participation in the Walmart incident to conclude [he] was the
perpetrator of the ATM robbery.” In effect, defendant cites the risk the jury would
reason that if he had no compunction about stealing from Walmart, he also likely
committed the ATM robbery.
Criminal propensity is always a risk with other crimes evidence. However, we
must presume this risk was mitigated by the court’s admonition to the jury to refrain from
considering the evidence as an indication of defendant’s criminal propensity. (See, e.g.,
People v. Lewis (2001) 25 Cal.4th 610, 637 [“the trial court limited any prejudicial
impact of the uncharged crimes evidence by instructing the jury . . . that such evidence
could not be considered to prove defendant was a person of bad character or that he had a
disposition to commit crime”].) Any risk the jury would improperly consider the count 2
evidence as propensity evidence was further mitigated by defense counsel’s closing
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argument. Counsel admonished the jury not to use the count 2 evidence for anything
other than intent. She informed the jurors that count 2 had been dismissed. She argued
they could only consider the count 2 evidence if the prosecution had proved defendant
committed the offense by a preponderance of the evidence, and only then for the limited
purpose of intent. She asserted that intent, however, was not at issue: “Identity is the
issue, and you’re not to use it for any improper purpose, which the only reason the
prosecution would introduce it is in the hopes that you would do so.”
We conclude the court’s intent instruction did not amount to an abuse of
discretion. In doing so, we recognize the difficulty of the issue before the court. Unlike
the typical situation where the trial court must determine whether to admit other crimes
evidence, the count 2 evidence had already been admitted as evidence of a charged crime.
That charge was later dismissed. However, the court recognized the reality that, having
already heard Rodriguez’s testimony, it would be difficult for the jurors to completely
disregard it.
The court’s choice was to instruct the jury either that it could not consider the
count 2 evidence at all, or that it could consider the evidence, but only for a limited
purpose. The court had already sanctioned the prosecution for failing to preserve the
Walmart surveillance video by dismissing count 2. Prohibiting the use of Rodriguez’s
testimony as circumstantial evidence of intent (as permitted under Evid. Code, § 1101,
subd. (b)) would have restricted the prosecution’s ability to prove every element of count
1 beyond a reasonable doubt, effectively extending the count 2 sanction to count 1.
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Defendant argues that the prosecution’s ability to prove intent was essentially a red
herring because the jury’s verdict hinged on the issue of identity. However, our Supreme
Court has rejected this type of argument, concluding that a defendant’s assertion that the
issue is “identity, and not intent, does not eliminate the prosecution’s burden” to “prove
each element of its case.” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1223.)
Viewing the court’s choice from defendant’s perspective, we cannot say that a wholesale
exclusion would have even succeeded in eliminating prejudice. This is, of course,
because the jury had already heard the evidence. The jury had also already heard defense
counsel concede in her opening statement that defendant was the perpetrator of the
Walmart incident. What defendant disputed about the incident was not his involvement,
but his alleged use of a gun.
On the other hand, a limiting instruction like the one the trial court provided
allows the prosecution to use the evidence for a proper purpose (i.e., for intent which
while not in dispute was nevertheless in issue) while simultaneously admonishing the
jury not to consider it for any improper purposes, such as identity or criminal propensity.
(People v. Homick (2012) 55 Cal.4th 816, 866-867 [challenges to the efficacy of limiting
instructions should be rejected as “[t]he crucial assumption underlying our constitutional
system of trial by jury is that jurors generally understand and faithfully follow
instructions”].) Based on the options before the court, we cannot conclude that the intent
instruction was unreasonable or “patently absurd.” (People v. Rogers (2013) 57 Cal.4th
296, 326.)
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Defendant contends that where, as here, the challenged evidence was the
“centerpiece” of the prosecutor’s closing argument, the evidence is unduly prejudicial.
We disagree with defendant’s assessment of the prosecutor’s closing argument. Like
defense counsel, the prosecutor focused her argument on identification. The majority of
her argument detailed the evidence supporting Edeza’s identification, which included
Edeza’s testimony regarding the perpetrator’s appearance, the contents of the ATM
surveillance video, and Deputy Patterson’s opinion that defendant closely resembled the
perpetrator in the video. She made no reference to the Walmart incident during her
discussion of identity. She mentioned the Walmart incident only during her brief
discussion of intent, telling the jury that “the law allows that when there [are] similar
circumstances in a previous occasion that that intent is the same in the charged offense.”
The prosecutor’s reference to the count 2 evidence was brief and in no way
inflammatory. She correctly reminded the jurors of the limited use of the evidence.
There is no likelihood that the prosecutor’s closing argument increased the risk that the
jury would consider the evidence as identity or propensity evidence.
In any event, even if we had concluded the court abused its discretion in giving the
intent instruction, the error would be harmless. (People v. Watson (1956) 46 Cal.2d 818,
836 (Watson) [“a ‘miscarriage of justice’ should be declared only when the court, ‘after
an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is
reasonably probable that a result more favorable to the appealing party would have been
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reached in the absence of the error”].)3 The perpetrator stood two to three feet away from
Edeza during the robbery. The area around the drive-up ATM was well lit, the
perpetrator did not wear a mask or otherwise cover his face, and Edeza was able to get a
good look at the perpetrator from his chin to his eyebrows. Deputy Patterson testified
that he was also able to identify defendant in the surveillance video, based on the neck
tattoos and distinctive facial wrinkles that the perpetrator shared with defendant.
Defendant makes much of the fact that Edeza did not notice any tattoos on the
perpetrator, but Edeza provided a sufficient explanation for why this was so. He could
not see the perpetrator’s neck because it was covered, and he was not paying attention to
the perpetrator’s knuckles because he was focused on his face and gun. Moreover, as
previously noted, the jury viewed the ATM surveillance video, in which the perpetrator’s
neck tattoos are visible. Despite defendant’s contention that Dr. Pezdek’s testimony
demonstrated that Edeza’s identification was not reliable, the jury was free to find
Edeza’s testimony credible. Furthermore, the robbery was captured on surveillance video
and the jurors were able to review that video for themselves and decide whether
defendant resembled the perpetrator.
3 Defendant is incorrect that the harmless error standard articulated in Chapman v. California (1967) 386 U.S. 18 applies to the court’s instruction. This standard applies to evidentiary errors of a federal constitutional magnitude. (Id. at p. 24.) Where, as here, the alleged evidentiary error does not violate the defendant’s right to a fair trial, courts employ the Watson standard. (See, e.g., People v. Foster (2010) 50 Cal.4th 1301, 1333 [analyzing the defendant’s claim that the trial court’s admission of other crimes evidence for purposes of identity was prejudicial error under Watson].)
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Defendant also argues that the jury’s questions demonstrated it was not convinced
Edeza had correctly identified defendant. We disagree. During deliberation, the jury
asked for and received a readback of Deputy Patterson’s testimony regarding his review
of the ATM surveillance video, a playback of the ATM surveillance video, and a
playback of Edeza’s and Rodriguez’s 911 calls. Nothing about these requests indicates
that the jury was inappropriately considering the Walmart evidence as evidence of
identity. Rather, the jury’s desire to review the ATM surveillance video and Deputy
Patterson’s testimony, and listen to Edeza’s 911 call indicates that it used count 1
evidence to determine that the perpetrator in the video was defendant. Although the jury
did request the still photographs from the Walmart surveillance video, the court refused,
informing the jury that the photographs were not evidence in the case. Had the jurors
been given access to the Walmart photographs, they perhaps would have compared
defendant’s appearance in those photographs with the perpetrator’s appearance in the
ATM surveillance video. But the jurors were never given this opportunity.
In sum, the prosecution presented strong evidence that Edeza correctly identified
defendant and we see no indication in the record that the jury relied on anything other
than count 1 evidence in reaching its decision that defendant was the perpetrator of the
ATM robbery. It is therefore not reasonably probable that defendant would have
received a more favorable result if the court had not given the intent instruction.
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III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
HOLLENHORST Acting P. J.
McKINSTER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court properly dismissed a robbery count due to the prosecution's bad-faith destruction of potentially exculpatory surveillance video and did not abuse its discretion by instructing the jury that evidence of the dismissed count could be considered for the limited purpose of proving intent regarding the remaining robbery count.
Issues
Whether the trial court erred in dismissing a robbery count based on the prosecution's failure to preserve surveillance video.
Whether the trial court abused its discretion by instructing the jury that evidence of the dismissed count could be used to prove intent for the remaining count.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“I conclude that the conduct of [the deputy] does rise to the level of gross negligence, and my view is that equates to malice, and for that reason, I do find the destruction of the tape to have been in bad faith.”
“A defendant’s not guilty plea places each element of the crime in issue.”