California Court of Appeal Feb 3, 2022 No. E073565AUnpublished
Filed 2/3/22 P. v. Pell CA4/2 Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Respondent, E073565
v. (Super.Ct.No. INF1401951)
TRENT WILLIAM PELL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Johnnetta E. Anderson,
Judge. Affirmed in part; reversed in part with directions.
Goldstein Legal Office and Elana Goldstein for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland and Daniel Rogers, Assistant Attorneys
General, Eric A. Swenson, Kristine A. Gutierrez, Allison V. Acosta and Jennifer B.
Truong, Deputy Attorneys General, for Plaintiff and Respondent.
1
While at a pool party, appellant Trent Pell tried to have sex with Jane Doe, who’d
had too much to drink and had passed out on a bed. Doe’s friends walked in on Pell as he
stood over Doe with his pants down. They testified he appeared to be having intercourse
whether the evidence was admissible].) The trial judge agreed with Pell’s concerns about
disclosing the amount of the arrest warrant bond, sustained his objection, and instructed
the jury to disregard that testimony. Meanwhile, as the trial judge correctly pointed out,
the investigating officer did not testify that Pell had in fact posted a $1 million bond or
that police had in fact had to extradite him to get him to California. On the contrary, the
record was clear Pell turned himself in voluntarily and the court excluded any evidence
that Pell had paid a bond in any amount. Thus, the only problem testimony concerned the
revelation that a court had issued a $1 million arrest warrant bond. We conclude the trial
judge reasonably determined that misstep could be cured by instructing the jury to
disregard testimony and not to consider that evidence for any purpose.
Even if the prosecutor did commit misconduct, we would conclude the
introduction of testimony about the arrest warrant bond amount and the potential that
police would have to extradite Pell was harmless. Defense counsel objected to the
introduction of this evidence immediately and effectively. After a discussion outside the
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presence of the jury, the trial judge decided the record was clear that Pell had not been
extradited. She also decided that she should instruct the jury to disregard any testimony
about the amount of the bond. When a trial judge sustains an objection, we presume any
prejudice arising from the question is abated. (People v. Dykes (2009) 46 Cal.4th 731,
764.) But the trial judge went further. She instructed the jury to disregard the testimony
entirely, and we presume the jury followed that instruction. (People v. Sanchez (2001) 26
Cal.4th 834, 852.) If Pell had his way, his counsel would have presented evidence on the
full history of the various bond amounts that were in fact set. So, the jury would have
learned the bond was in fact set at $1 million at one point and that Pell posted a $200,000
bond. Thus, not only can Pell not show the judge’s admonishment failed to cure any
prejudice, the ruling likely saved him from the introduction of additional prejudicial
information.
It’s also important that the circumstances of the investigation and Pell’s arrest
were collateral issues. A reasonable jury would have understood the investigator’s
testimony about needing to have Pell extradited from Michigan to arrest him, the process
of obtaining an arrest warrant with a bond amount, and the unusual course Pell followed
of posting bond without being placed in custody were meant to explain why Pell was not
arrested immediately. These issues had minimal bearing on whether the jury believed Pell
committed the sexual assault of Doe.
Pell emphasizes that the trial judge herself recognized introducing the amount of
the bond posed a danger of prejudice. He points to the judge’s comment, “I don’t want to
16
hear anything about how much the bond was and all this as though this is something
that’s just so unique to this defendant . . . . This is something not unique to this defendant.
I think that it is prejudicial to allow you to get into that line of questioning.” This
quotation isn’t as revealing as Pell makes out. The trial judge was considering whether to
admit the evidence under Evidence Code section 352, which permits the exclusion of
relevant evidence if its probative value is substantially outweighed by the risk of
prejudice to the defendant. But “prejudice” in this context doesn’t mean what it means in
the context of deciding whether an error was harmful on appellate review.
Under Evidence Code section 352, what’s important is whether, in the trial judge’s
judgment, the evidence is inflammatory or likely to confuse the jury and distract from the
real issues on trial. (E.g., People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) What’s
important on appellate review is whether, in our judgment, an erroneous decision to
admit evidence prejudicial in that sense may have had an effect on the outcome, because
there is a reasonable probability the defendant would have received a more favorable
result if the evidence had been excluded. (E.g. People v. Munoz (2019) 31 Cal.App.5th
143, 168.) It is common for appellate courts to conclude the admission of evidence posed
a great danger of prejudice within the meaning of Evidence Code section 352, but
nevertheless decide the admission was harmless within the meaning of article VI, section
13 of the California Constitution. (E.g., People v. Frank (1985) 38 Cal.3d 711, 731-732.)
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C. Evidence of Doe’s Civil Lawsuit and Settlement
Pell argues the trial judge abused her discretion by denying his request to impeach
Doe with the fact that she had filed a civil lawsuit against him and the owners of the
home where the assault occurred and received a settlement payment.
1. Additional background
The prosecutor filed a motion to exclude evidence that Doe filed a civil lawsuit
against Pell and recovered a monetary settlement. Pell argued these facts were relevant to
show Doe’s “motive for perhaps not being forthright or her decision to press charges and
pursue this case.” Defense counsel emphasized Doe hadn’t wanted to prosecute the case
in the beginning and suggested the evidence that she ultimately recovered a settlement in
a civil suit showed she was motivated by money, not the truth of the allegations against
Pell. The trial judge asked how the lawsuit showed Doe wasn’t being forthright when she
had already recovered a settlement. Defense counsel responded, “she doesn’t want to
contradict prior statements she made in the civil case . . . [and] [s]he is not that set on
pursuing this [prosecution].”
Initially, the judge agreed with defense counsel and ruled Pell could question Doe
about the civil lawsuit. “[B]oth sides are entitled to let the jury be aware of any bias or
motive or any interest that might exist in the case because it goes to the witness’s
credibility.” She concluded the evidence had probative value and was not unduly
prejudicial.
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The parties then discussed how much information about the lawsuit would be
admitted at trial. Defense counsel said the defense would limit itself to impeaching Doe
by pointing out that she had initiated a lawsuit. “I have no intention of introducing the
settlement amount. . . . My sole purpose in discussing this lawsuit is her bias . . . [¶] . . .
You filed a lawsuit and you didn’t want anyone to know about that. You waited. I am
going to get into her bias and motive. That’s it. I am not going to go into the weeds of it.”
The prosecution objected that opening those issues would make it necessary to go into
more details—“That [the lawsuit] was initiated, that the case was not closed, that there
was a settlement in the case, and there was payment to [Doe]. I think it is very relevant,
bring up the fact, quote/unquote, ‘let the defense depict her as a gold digger,’ [then] it is
relevant to know that she, in fact, got a settlement.” The prosecution also argued it was
relevant that the homeowner’s insurance company paid the settlement amount.
The trial judge then asked, “So you want to bolster her veracity by saying she was
paid off by insurance adjusters?” The prosecutor responded, “No. What I would like to do
is not have it be mentioned at all.” Despite these objections, the trial judge concluded
defense counsel “can inquire into whether [Doe] filed a civil suit against Mr. Pell. That’s
the way it will be left.” The judge reconfirmed her ruling that the evidence was
admissible and not unduly prejudicial but invited the parties to brief whether she should
instruct the jury on how to consider the evidence.
Defense counsel later clarified that, although Doe received a settlement of over
$100,000, she had also sued the owners of the home where the incident occurred, and it
19
was their homeowner’s insurance policy who paid. Defense counsel represented that Pell
neither settled nor paid Doe.
The next day, the judge announced she was leaning toward reconsidering her order
and barring the evidence concerning the civil suit. She explained her view that testimony
that a civil suit was pending would be relevant to bias but said she had come to doubt
whether a lawsuit that had settled would be as probative. “If it were pending then the
argument could be made that the alleged victim is testifying in a certain manner because
she’s expecting to gain something in a civil suit. [¶] So I need for the defense to be very
clear to me in terms of how the civil suit . . . plays any role in the alleged victim’s motive
or bias.”
Defense counsel argued Doe originally expressed no interest in calling the police
or pursuing a criminal investigation and suggested she may have changed her mind
because she had a financial incentive to do so. He suggested she had to continue
participating in the criminal case because she had “already started this ball rolling” and
“can’t go against her prior claims now.” The trial judge pointed out Doe had changed her
mind and participated in the law enforcement investigation long before she initiated her
civil lawsuit. Defense counsel asserted “the motive for pursuing the criminal was to gain
leverage in civil.” The trial judge expressed concern that telling the jury about the civil
suit would open the question of what happened in that suit. Defense counsel proposed
telling the jury simply that it was “not pending any longer.”
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In the end, the trial judge changed her mind about the evidence and excluded any
mention of the civil suit. “I am going to deny the request for you to get into the fact that
she requested a civil suit. I don’t see probative value to it. I think it is unduly prejudicial
in the consumption of time, I do think would be undue consumption of time. So I am
reversing myself.”
2. Analysis
“‘Evidence showing a witness’s bias or prejudice or which goes to his credibility,
veracity or motive may be elicited during cross-examination.’” (People v. Carpenter
(1999) 21 Cal.4th 1016, 1054.) Cross-examination is subject to restriction under
Evidence Code section 352 if it is cumulative or if it constitutes impeachment on
collateral issues. (People v. Mincey (1992) 2 Cal.4th 408, 440.) The trial judge has wide
discretion under Evidence Code section 352 to limit cross-examination on issues which
have only marginal probative value. (People v. Wheeler (1992) 4 Cal.4th 284, 295-296.)
“Moreover, reliance on Evidence Code section 352 to exclude evidence of marginal
impeachment value that would entail the undue consumption of time generally does not
contravene a defendant’s constitutional rights to confrontation and cross-examination.”
(People v. Brown (2003) 31 Cal.4th 518, 545.)
We review the trial judge’s determination for abuse of discretion and reverse only
if the judge has exercised her discretion in an arbitrary, capricious, or patently absurd
manner resulting in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8
Cal.4th 1060, 1124-1125.)
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We conclude the trial judge exercised her discretion appropriately. The evidence
that Doe had filed a civil lawsuit against Pell for the assault was at best marginally
relevant. Critical here, as the trial judge concluded, was the fact that the civil case had
settled before the trial in this case, meaning Doe no longer had any financial incentive to
falsely testify or fabricate allegations. Defense counsel speculated she may have wished
to maintain consistency with her claims in the civil lawsuit, but absent some indication
that the settlement could be unwound if the criminal trial failed, that is too speculative a
basis for opening the trial testimony on a collateral issue.
More importantly, as the trial court explained, informing the jury about the civil
lawsuit would have opened the door to testimony and instructions regarding the
inferences that the jury could and could not draw from that evidence. Either way,
admitting the evidence would have required the expenditure of time not warranted by
evidence of such marginal probative value. (See People v. Brown, supra, 31 Cal.4th at
p. 545.) Against that background, we can’t conclude the trial judge acted arbitrarily when
she excluded the evidence. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
We also conclude any error was harmless. (People v. Snow (2003) 30 Cal.4th 43,
90.) The prosecutor’s case leaned most heavily on the testimony of Doe’s two friends
who walked into the room and saw appellant with his pants down while Doe was passed
out on the bed. Doe herself didn’t remember the events. Thus, undermining her
credibility would have left the strongest evidence against Pell untouched. As a result, we
conclude there’s no reasonable probability Pell would have realized a more favorable
22
result had his counsel been allowed to question Doe about the civil lawsuit.
D. Denial of Pell’s Pitchess Motion
Pell argues the judge who heard his pretrial motion under Pitchess v. Superior
Court (1974) 11 Cal.3d 531 (Pitchess) abused his discretion when he refused to order
discovery of the personnel records of a police officer who investigated his case. The
prosecutor had informed defense counsel the officer had been charged with felony assault
under the color of authority, and Pell speculated the officer’s personnel files might
contain evidence that would undermine his credibility.
1. Additional background
Before trial, Pell filed a motion to compel discovery of the personnel records of an
Indio police officer involved in the case. The officer had recently been charged with
felony assault under the color of authority after being “caught on videotape assaulting a
man while on duty” and “kick[ing] the victim in the face.”
The officer in question was one of the first officers to respond to investigate the
incident in this case, and he interviewed witnesses, collected evidence, and prepared
reports. Pell argued the officer’s “character for truth and veracity” had been called into
question and that he was “entitled to know whether or not [the officer] has engaged in
any other similar behavior that could further erode his credibility.” He also argued the
assault allegation against the officer entitled him to “evidence of other acts [that are]
similar,” “any other acts that may indicate moral turpitude,” and “all potentially
exculpatory materials.” The City of Indio opposed the motion, arguing Pell had failed to
23
show good cause because he hadn’t plausibly explained how the protected records were
relevant.
At the hearing, the presiding judge, Riverside County Superior Court Judge Dale
R. Wells, indicated he was inclined to deny the motion. “I’m sympathetic to the reasons
for filing the motion as set forth in the motion; however, I do not think it complies with
the statutory requirement to show a plausible factual scenario that’s internally consistent
as to how the felony charges against [the officer] relate to this particular case.”
Defense counsel argued the assault charges “put in question his character for
truthfulness.” The judge responded, “[F]elony charges have been filed against the officer
[] for excessive force, not for, you know, falsifying a report.” Defense counsel responded,
“we would be willing to reasonably limit it if the court were to at least be willing to look
in camera through that officer’s file and determine if there’s anything there that reflects
on his character for truthfulness or accuracy in reporting.” She also said, “[W]e do deny
the accuracy of the reporting in the police reports in this case,” but acknowledged
“there’s no specific factual scenario.”
The judge denied the motion without prejudice, explaining, “You didn’t give me a
plausible factual scenario that would allow me to look into specific allegations. In the
way [the motion is] drafted, it does kind of look like a fishing expedition.”
2. Analysis
A criminal defendant is entitled to discovery of information in the personnel
records of a police officer accused of misconduct only on a showing of good cause.
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(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 (Warrick).) By requiring a
showing of good cause, the Pitchess procedure balances a defendant’s right to discovery
of all information pertinent to his defense and a peace officer’s right to privacy. (City of
Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81-84 (City of Santa Cruz).)
“Good cause for discovery exists when the defendant shows both materiality to the
subject matter of the pending litigation and a reasonable belief that the agency has the
type of information sought. A showing of good cause is measured by relatively relaxed
standards that serve to insure the production for trial court review of all potentially
relevant documents.” (Warrick, supra, 35 Cal.4th at p. 1016 [cleaned up].) This two-part
showing is a “relatively low threshold for discovery.” (City of Santa Cruz, supra, 49
Cal.3d at p. 83.)
“To show good cause[,] . . . defense counsel’s declaration in support of a Pitchess
motion must propose a defense or defenses to the pending charges. The declaration must
articulate how the discovery sought may lead to relevant evidence or may itself be
admissible direct or impeachment evidence [citations] that would support those proposed
defenses.” (Warrick, supra, 35 Cal.4th at p. 1024.) The trial judge then must determine
“whether defendant’s averments, viewed in conjunction with the police reports and any
other documents, suffice to establish a plausible factual foundation for the alleged officer
misconduct and to articulate a valid theory as to how the information sought might be
admissible at trial.” (Warrick, at p. 1025 [cleaned up].) The allegations in the defense
declaration must be factually specific and tailored to support the claim of officer
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misconduct. (Id. at p. 1027.) In addition, the allegations must be internally consistent and
support the defense. (Id. at pp. 1025-1026.)
We review the judge’s order denying the motion for an abuse of discretion,
reversing only where the judge acted arbitrarily. (People v. Lewis and Oliver (2006) 39
Cal.4th 970, 992.)
We conclude Pell didn’t show good cause for discovery of the officer’s personnel
records. Pell supported his motion with a declaration which summarily cited the officer’s
assault charge and concluded the officer’s personnel file might include evidence of
dishonesty or other assaults. The declaration supplied no basis for believing the officer’s
personnel file did in fact contain such information. Nor did the declaration show a logical
connection between the alleged assault and Pell’s defense. Pell neither alleged the officer
had committed an assault in this case, nor that the officer had falsified his report. When
asked at the hearing to draw the connection between the assault charges the officer faced
in another case and concern about the officer’s truthfulness or potential misconduct in
this case, defense counsel asked the court to “look in camera through that officer’s file
and determine if there’s anything there that reflects on his character for truthfulness or
accuracy in reporting.” In short, as the judge concluded, it appeared Pell’s counsel was on
a fishing expedition, hoping to uncover evidence indicating the officer’s untruthfulness
based on the fact that he had committed other bad acts. The judge did not act arbitrarily in
concluding Pell had not shown good cause for the discovery.
26
Nor can Pell establish he was prejudiced by the denial of his motion. (People v.
Samuels (2005) 36 Cal.4th 96, 110 [“[E]ven if the trial court erred because defendant
made a showing of good cause in support of his [Pitchess ] request . . . such error was
harmless”].) Pell speculates “prior instances of dishonesty, perjury, planting of evidence,
and fabrication of facts and police reports” would have damaged the officer’s credibility,
but he has offered no reason to believe that such evidence existed. Speculation is not
enough to establish harm.
It’s also important that alleging law enforcement had fabricated allegations against
him played no role in his defense. The most important evidence against him came from
the two eyewitnesses who walked in on Pell and saw him with his pants down, standing
over Doe while she was passed out. The officer’s trustworthiness could have had no
impact on the testimony of those witnesses or any of the other evidence against Pell.
E. Assembly Bill 518
At the time of Pell’s sentencing, the trial judge was required to impose the longest
potential term of imprisonment, which she did by imposing a four year sentence. The full
sentence consisted of the mid-term of four years for count three, the mid-term of three
years for count one, stayed under section 654(a), and one year for count four, also stayed
under section 654.{2CT 572; 7RT 1171}
After we issued an opinion affirming the judgment, the Legislature gave trial
judges new discretion, where “[a]n act or omission that is punishable in different ways by
different provisions,” to impose punishment under any of those provisions. (§ 654(a), as
27
amended by Stats. 2021, ch. 441, § 1 (AB 518), effective January 1, 2022.) Pell sought
the benefit of the new law in a petition for review in the California Supreme Court, which
granted review and directed us to reconsider the matter in view of this change to the
sentencing law.
We asked for supplemental briefing on this issue, and the parties agree the new
sentencing provision applies to Pell’s case because judgment is not final and the
amendment grants the sentencing court new discretion to impose a lesser punishment.
(See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 309.)
We agree and conclude remand for resentencing is required because the record
does not reveal “a clear indication that the trial court would not have reduced the
sentence even if at the time of sentencing it had the discretion to do so.” (People v.
Almanza (2018) 24 Cal.App.5th 1104, 1110.)
III
DISPOSITION
We affirm the judgment of conviction but reverse the sentence and remand for
resentencing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J. We concur:
MILLER Acting P. J. RAPHAEL J.
28
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions but reversed the sentence and remanded for resentencing to allow the trial court to exercise its new discretion under the amended Penal Code section 654, subdivision (a).
Issues
Whether the trial court erred in instructing the jury on attempted rape of an unconscious person as a lesser included offense.
Whether the prosecutor committed misconduct by questioning a witness about the defendant's arrest warrant bond amount and extradition.
Whether the trial court abused its discretion in excluding evidence of the victim's civil settlement.
Whether the trial court abused its discretion in denying discovery of a police officer's personnel records.
Disposition. Affirmed in part; reversed in part with directions.
Quotations verified verbatim against the opinion
“We conclude the new law applies to Pell’s case, and he is entitled to be resentenced by a judge exercising the new sentencing discretion.”
“We therefore affirm the judgment of conviction but reverse the sentence and remand for resentencing.”
“The Legislature has provided that a “jury . . . may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.””