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The People v. Kenneth Bowles

August 11, 2011

THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
KENNETH BOWLES, DEFENDANT AND RESPONDENT.



(Super. Ct. No. SCN266632) APPEAL from an order of the Superior Court of San Diego County, Harry M. Elias, Judge. Order reversed and matter remanded.

The opinion of the court was delivered by: McINTYRE, J.

CERTIFIED FOR PUBLICATION

In this case, we conclude that a trial court's power to grant sanctions under Penal Code section 1054.5, subdivision (b) (§ 1054.5(b)) based on the prosecution's failure to disclose exculpatory evidence is limited to a circumstance where the verdict has not yet been rendered on the charged crimes and while the trial court has jurisdiction over the criminal case. (Undesignated statutory references are to the Penal Code.) Accordingly, we conclude the trial court erred by granting a new trial as a discovery sanction under section 1054.5(b) after the jury rendered its verdict on the charges against the defendant and the trial court conducted the bifurcated trial on the alleged prior offenses.

FACTUAL AND PROCEDURAL BACKGROUND

On January 29, 2009, David Meyer left his unlocked bicycle by the front entrance of a Vons store located on South Santa Fe Avenue in Vista, California. (All further dates are in 2009.) When he returned, the bike was missing. The store manager saw the incident, but believed that a friend of Meyer's had taken the bike. Sheriff's Deputy Michael Proffitt responded to the theft report and reviewed the security video with the store manager. The time stamp on the store video indicated that the crime occurred at 2:06 p.m.

A few weeks later, Meyer received a telephone call from a friend telling Meyer that he had found the wheel from Meyer's bike in a bicycle shop. Meyer later identified a distinctive wheel as being from his bike. Meyer contacted Sheriff's Detective Denise McGehee, to let her know of his discovery. It turned out that an innocent third party had purchased Meyer's stolen bike from the Tri-City Pawn Shop, and had taken the rear wheel to the bicycle shop for repairs.

Sylvia Gonzalez owns the Tri-City Pawn Shop and works at the store with her son, Steven Castaneda. The shop is located about three or four blocks from the Vons on South Santa Fe Avenue. When individuals sell or pawn an item they must show a valid state photo identification card or driver's license. Information from the picture identification, such as birthday and address, must be entered onto a state mandated pawn slip, which is then printed out from the computer so the person can sign it and provide a right thumbprint.

At 2:06 in the afternoon on January 29, the pawn shop purchased a DVD player. The pawn slip for the DVD player listed defendant Kenneth Bowles as the seller. Later that afternoon, the pawn shop purchased a bike with a black frame and green rims. The pawn slip listed Bowles again as the seller. As required by law, the pawn shop provided copies of all pawn slips to the Sheriff's Department.

In August, Detective McGehee was assigned a second bicycle theft case for an unlocked bicycle that had been stolen from the front of a CVS store located on Escondido Avenue and Rancho Santa Fe in Vista, California. After receiving the video surveillance of the theft, Detective McGehee prepared a "be-on-the-lookout" bulletin showing photographs of an individual stealing the bicycle.

Sheriff's Deputy Timothy Clark reviewed the bulletin for the second bike theft. He recognized the person in the photograph as Bowles. Deputy Clark ultimately arrested Bowles and brought him to an interview room at the Vista station, obtained a Miranda waiver, and interviewed him. (Miranda v. Arizona (1966) 384 U.S. 436.) In response to questioning, Bowles told Deputy Clark that he had purchased a black bike with green wheel forks from an individual for $20, and that he later pawned the bike. Bowles denied stealing a bike from the Vons on South Santa Fe Avenue. Although Bowles initially denied stealing a bike from the CVS store, he later admitted being the person shown in the store surveillance photograph taking the bike.

A felony complaint charged Bowles in counts 1 and 4 with grand theft of Meyer's bicycle and the second bicycle, respectively. With respect to Meyer's bicycle, the complaint also charged Bowles with burglary (count 2) and receiving stolen property (count 3). It was further alleged that Bowles suffered two probation denial prior convictions and had two prison prior convictions. After count 4 was revised to allege petty theft, Bowles pleaded not guilty to all charges.

On November 18, Detective McGehee found the original pawn slips for Meyer's bike and the DVD player and gave them to the prosecutor. The prosecutor immediately requested that the fingerprints on the original pawn slips be examined because fingerprints could not be examined from copies.

That same day, a forensic technician for the district attorney's office examined the pawn slips and prepared a fingerprint examination report. On the original pawn slip for Meyer's bike, the forensic technician wrote "insufficient detail - inconclusive" because the fingerprint could not be matched to Bowles. Because the result had been inconclusive, the forensic technician did not include the information in the fingerprint examination report. She explained that she did not think to include the information because she had never come across an "inconclusive" result.

The fingerprint examination report, however, matched the fingerprint on the pawn slip for the DVD player to Bowles, and matched that print with other prints on file in connection with Bowles's prior convictions. The prosecutor gave defense counsel a piece of paper with copies of both pawn slips as they appeared before they were given to the forensic technician; thus, they did not contain the forensic technician's handwritten notes. The prosecutor placed the original pawn slips ...


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