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The People v. Daniel Jesus Moreno

February 8, 2011


APPEAL from the Superior Court of San Bernardino County. Duke D. Rouse, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part with directions. Super.Ct.No. FSB053258

The opinion of the court was delivered by: KingJ.




Defendant was convicted by a jury of first degree murder. (Pen. Code, § 187, subd. (a).)*fn1 The jury also found true an allegation that, in committing the murder, defendant personally used a deadly and dangerous weapon, a knife. (§ 12022, subd. (b)(1).) In a bifurcated trial, the court found true allegations that defendant had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior prison term for a violent felony (§ 667.5, subd. (a)), and prior prison terms for two other felonies (§ 667.5, subd. (b)). He was sentenced to an aggregate term of 50 years to life, plus one year.

On appeal, defendant contends: (1) the trial court erred in refusing to conduct an in camera review of documents in the personnel file of the victim, a former peace officer, pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and related law; (2) the use of a Spanish language interpreter for a juror requires reversal; and (3) the admission into evidence of certified records of his prior convictions deprived him of his Sixth Amendment right of confrontation. We agree with defendant's first argument and reject the other arguments. Accordingly, we will conditionally reverse the judgment to permit the court to conduct the necessary in camera review and make appropriate orders based on such review.


On November 25, 2005, defendant and Tami Potter, a former San Bernardino County probation officer, argued in the hallway of a sober living house in San Bernardino.*fn2 At some point during the argument, Potter said that someone had taken $80 that belonged to her. She told defendant she was going to "handle my business" and pushed defendant in the chest with her hands. Defendant unsheathed a knife and stabbed Potter multiple times, killing her.

James Walker, a resident of the house, was awakened by the argument. When he heard a woman scream, "help me," he opened his bedroom door. He saw Potter collapse onto the floor with blood squirting from her neck or shoulder area. Defendant was behind Potter. Defendant then ran away from Potter, yelling, "'Fuck you, bitch. That's what you get. That's what people like you deserve.'"*fn3 Defendant was holding a white cloth covered in blood that appeared to be wrapped around something. Defendant ran to Potter's truck and drove away.

Later that day, defendant arrived at Debbra Garrett's apartment with one or two duffle bags. Defendant remained inside the apartment for the next two days.

On November 27, 2005, police saw Potter's truck at Garrett's apartment building. With Garrett's consent, they searched the apartment and found defendant lying on a bed. When defendant sat up on the bed, he said, "I can't believe I got caught," and "this was a short run." On a dresser in the bedroom, the police found defendant's wallet and a balloon. Inside the balloon was a newspaper article about Potter's murder. Defendant's duffle bag contained a narcotics pipe with methamphetamine residue, a knife with dried blood on its blade, and a black "Solo" brand windbreaker saturated with blood. DNA testing showed the blood on the knife, windbreaker, and defendant's shoes to be Potter's blood. Blood was also found on the interior of Potter's truck.

Detective Vasilis interviewed defendant. According to defendant, he and Potter were in a "struggle" and argued that day. She was, in his words, "very disrespectful to me"; "Called me [a] fucking bitch. You little fuckin' pig. You're going to be my little bitch." Potter told defendant that someone took $80 from her and that she was "'about to handle my business. I'm gonna fuck somebody up.'" Potter then "pulled around on" defendant and pushed him in the chest. Defendant was aware that Potter was a former law enforcement officer who worked in juvenile hall and knew how to "restrain" defendant. He was scared and believed "she was about to do something to" him. He "snapped" and "defended himself." He unsheathed his knife and stabbed Potter multiple times. He then ran to Potter's truck and drove away. Defendant told Detective Vasilis he was wearing a Solo windbreaker at the time of the stabbing.

A pathologist testified that Potter suffered three stab wounds; two in the front, upper part of Potter's chest, and one in the back. The wounds indicated they were caused by a knife. The pathologist could not identify the sequence in which the wounds were inflicted. Potter died "in a matter of minutes" of being stabbed. She did not have any "defensive wounds"; that is, a wound that suggests the victim was trying to protect herself from attack. The pathologist testified the absence of defensive wounds could mean that the victim was overpowered so rapidly she had no chance to defend herself. It could also mean the victim was somewhat incapacitated or impaired because of drug use.

Potter had both methamphetamine and marijuana in her body at the time of her death. According to the pathologist, the methamphetamine had been consumed "not too long before she died." Methamphetamine has a stimulant effect that can cause people to become agitated, anxious, or potentially violent.


A. Denial of Defendant's Pitchess Motion

Defendant contends the court erred in refusing to conduct an in camera review of material contained in Potter's personnel file. We agree.

1. Factual and Procedural Background

Prior to trial, defendant filed a motion for discovery of material in Potter's personnel files concerning, among other matters, Potter's "use of force in general when effectuating an arrest and when supervising detainees in custody in adult and juvenile facilities . . . ." The materials sought allegedly related to potential claims, defenses, or impeachment concerning Potter's use of "[e]xcessive force . . . , violence, attempted violence, hostility, aggression, assaultive behavior, and/or proclivity for violence[.]" (Fn. omitted.) The motion was made pursuant to, among other authorities, Pitchess and Evidence Code sections 1043 through 1047.

The motion was supported by a declaration of defendant's counsel and a copy of a police report concerning Potter's murder. Defendant's counsel stated that Potter "has up to 10 years of employment with the San Bernardino County Probation Department[.]" The attorney did not indicate whether Potter was employed as a probation officer at the time of her murder or, if not, when her employment terminated. (According to the People's written opposition to the motion, Potter was not employed as a probation officer at the time of her death.)

Defendant's counsel further stated: "I am informed and believe that on occasion probationers, juveniles, arrestees, or the attorneys, friends, or relatives of such arrestees and probationers, make complaints to said agency concerning its law enforcement officers. These complaints allege that the officers committed acts of unnecessary or excessive force, professional misconduct, acts demonstrating ...

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