Filed 3/4/21 P. v. Loiacono CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B303339
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA075677)
v.
JOSHUA LEE LOIACONO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Modified and
affirmed with directions.
Helen Hoeffel, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Nima Razfar, Deputy
Attorneys General, for Plaintiff and Respondent.
******
INTRODUCTION
Appealing his convictions for being a felon in possession of
a firearm and ammunition, Joshua Lee Loiacono (defendant) (1)
argues that the trial court erred in giving a consciousness of guilt
instruction, and (2) asks us to review sealed transcripts to
examine whether the trial court erred in denying his motion to
quash a search warrant and unseal its accompanying affidavit,
and his motion to obtain law enforcement personnel records
under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We conclude there was no error, and affirm his convictions.
However, in light of the recent change to the maximum term of
probation effected by Assembly Bill No. 1950 (2019-2020 Reg.
Sess.) (Stats. 2020, ch. 328, § 2, eff. Jan. 1, 2021) (AB 1950), we
reduce the term of defendant’s probation from five years to two
years.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In the early morning hours of January 17, 2019, a score of
Los Angeles County Sheriffs deputies executed a search warrant
on a residential property in Palmdale, California. They were
looking for drugs; they found a weapon—namely, a .22 rifle with
54 live rounds of ammunition. Three items of evidence tied the
rifle and ammunition to defendant: (1) the rifle and ammunition
were found in the cab of an unlocked truck parked just 10 to 15
feet away from the recreational vehicle in which defendant was
living, (2) defendant’s father—who owned the property (and the
truck)—told Deputy Jonathan Livingston, as he was helping
Deputy Livingston locate the rifle, that defendant “uses” and “has
access to” the truck and that the “.22 . . . belong[ed] to”
defendant, and (3) defendant—while being transported to the
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police station—told Deputy Livingston and another officer, after
receiving and waiving Miranda warnings, that he had been
“shooting [the rifle] for days” and that he knew he was not
supposed to do that due to his prior felony convictions. Among
his many prior convictions, defendant has a 1999 conviction for
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felony burglary (Pen. Code, § 459) and a 2006 conviction for
maintaining a place for the purpose of selling, giving away or
using controlled substances (Health & Saf. Code, § 11366).
II. Procedural Background
A. Charges
The People charged defendant with (1) being a felon in
possession of a firearm (§ 29800, subd. (a)(1)), and (2) being a
felon in possession of ammunition (§ 30305, subd. (a)(1)).
B. Pretrial motions
Prior to trial, defendant (1) moved to quash the search
warrant and to unseal the portions of the warrant’s
accompanying affidavit that were under seal, and (2) filed a
motion to obtain the personnel records for, and citizen complaints
against, Deputy Livingston for any “conduct involving fabrication
or alteration of incident reports or other documents, as well as
any other acts of dishonesty or fabrication.” After examining the
sealed portion of the search warrant affidavit in camera, the trial
court found that (1) the magistrate who signed the warrant
“properly sealed” the sealed portions of the affidavit, and (2)
“there was enough probable cause for the issuance of the search
warrant.” The court accordingly denied the motions to quash and
to unseal. After conducting an in camera hearing with the
1 All further statutory references are to the Penal Code
unless otherwise indicated.
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custodian of records for the Los Angeles Sheriff’s Department, the
court ordered the disclosure of discovery.
C. Trial
The matter proceeded to a jury trial.
At trial, defendant’s father testified. Contrary to what
Deputy Livingston testified that the father had told him, father
testified that he never said defendant used the rifle. The father
also testified that the deputies had told him—while the search
warrant was still being executed—that defendant had admitted
to using the rifle, which is contrary to the deputies’ testimony
that defendant made his admission while he was being
transported to the station, which was after the search warrant
had been fully executed.
Over defendant’s objection, the trial court gave the
standard CALCRIM 371 consciousness of guilt instruction:
“If someone other than the defendant tried to create
false evidence, provide false testimony, or conceal or
destroy evidence, that conduct may show the
defendant was aware of his guilt, but only if the
defendant was present and knew about that conduct,
or, if not present, authorized the other person’s
actions. It is up to you to decide the meaning and
importance of this evidence. However, evidence of
such conduct cannot prove guilt by itself.”
After defendant admitted his prior convictions, the jury
convicted him of both counts.
The trial court imposed a high term, three-year prison
sentence for the possession of a firearm count, but suspended
execution of that sentence to place defendant on formal probation
for five years. The court also imposed a concurrent two-year
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prison sentence on the possession of ammunition count, and also
suspended execution of that sentence to place defendant on
formal probation for five years.
D. Appeal
Defendant filed this timely appeal.
DISCUSSION
I. Instructional error
Defendant argues that the trial court erred in giving the
standard CALCRIM 371 instruction on consciousness of guilt.
We independently review claims of instructional error. (People v.
Mitchell (2019) 7 Cal.5th 561, 579.) We reject defendant’s
argument for two reasons.
First, the trial court’s consciousness of guilt instruction in
this case was proper. A trial court may instruct a jury that it
may infer a consciousness of guilt from the proffering of false
testimony if there is “some evidence in the record that, if believed
by the jury, would sufficiently support the suggested inference.”
(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102; People v.
Hart (1999) 20 Cal.4th 546, 620.) Here, there was. As pertinent
here, the factual predicate for the CALCRIM 371 instruction is
that (1) “someone other than the defendant tried to . . . provide
false testimony,” and (2) defendant was “present and knew about
that conduct.” Here, defendant’s father provided false testimony
and defendant was present in court to witness that false
testimony and defendant knew the truth. The jury had ample
basis to conclude that the father’s testimony was false: His
testimony was different from his prior statements to the sheriff’s
deputies, he was biased in favor of defendant (Evid. Code, § 780,
subd. (f) [bias is relevant to credibility]), and his demeanor
evinced a lack of credibility. (Evid. Code, § 780, subd.
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(a) [demeanor is relevant to credibility].) Because “impeachment
evidence is evidence” (People v. Ghebretensae (2013) 222
Cal.App.4th 741, 750, italics added), there was “some evidence” to
support the factual predicate for this instruction. What is more,
given their familial relationship and the fact they live on the
same property, the jury could also infer that defendant had tried
to obtain his father’s false testimony. (See, e.g. People v.
Hunt (1982) 133 Cal.App.3d 543, 560 [consciousness of guilt may
be inferred when defendant urges his fiancée to give false
testimony]; People v. Kendall (1952) 111 Cal.App.2d 204, 213-214
(Kendall) [consciousness of guilt may be inferred when defendant
accompanies his wife in offering witnesses money to leave the
state]; cf. People v. Hannon (1977) 19 Cal.3d 588, 599-600
[consciousness of guilt may not be inferred when “some
unidentified attorney” not linked with any party to the
proceeding orders a witness not to talk to law enforcement].)
Second, any error was necessarily and “manifestly”
harmless because it left it entirely to the jury to decide if the
evidence showed that defendant had tried to provide false
testimony. (People v. Crandell (1988) 46 Cal.3d 833, 870,
overruled on other grounds in People v. Crayton (2002) 28 Cal.4th
346, 364-365; People v. Watson (1977) 75 Cal.App.3d 384, 403.)
Defendant offers what boils down to two arguments against
these conclusions. First, he contends that there was no evidence
that he asked his father to lie—and, by this, he necessarily
means no direct evidence. However, their relationship and their
residency on the same property constitutes circumstantial
evidence. To the extent defendant is demanding direct evidence
or conclusive evidence, he is demanding more than the law
requires. (Kendall, supra, 111 Cal.App.2d at p. 213 [attempts to
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suppress evidence “may be, and ordinarily must be, proved by
circumstantial evidence”]; People v. Alexander (2010) 49 Cal.4th
846, 921-922 [the “facts giving rise to an inference of
consciousness of guilt” need not “be conclusively established”].)
Second, defendant asserts that instructing the jury with
CALCRIM 371 violated due process because there was no
relationship between the factual predicate and the inference of
consciousness of guilt. This assertion lacks merit as to
CALCRIM 371 in the abstract because there is most certainly a
rational relationship between the factual predicate of
encouraging false testimony and the inferred fact of
consciousness of guilt. (People v. Goldsmith (2014) 59 Cal.4th
258, 270.) This assertion also lacks merit as applied to the giving
of CALCRIM 371 in this case because there was some evidence to
support the factual predicate and the instruction left it to the
jury to decide whether the predicate had been established—and
hence whether the inference of a consciousness of guilt was
warranted.
II. Review of In Camera Proceedings
A. Motions to unseal and to quash
When a defendant moves to suppress evidence obtained
with a search warrant and the affidavit accompanying that
warrant is wholly or partially filed under seal, the defendant may
ask the trial court to conduct an in camera hearing at which (1)
the court determines whether the sealed portions of the affidavit
were properly sealed to protect official information
(under Evidence Code section 1040), an informant’s identity
(under Evidence Code section 1041), or other applicable privilege,
and, if “significant” portions of the affidavit were properly sealed,
and (2) the court decides, based on both the unsealed and
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sealed portions of the affidavit, whether there is a “reasonable
probability that [the] defendant would prevail” on his pending
motion to suppress. (People v. Hobbs (1994) 7 Cal.4th 948, 963,
972, 974-975; People v. Heslington (2011) 195 Cal.App.4th 947,
957-959.)
Defendant has asked us to review the sealed portion of the
affidavit and the transcript of the in camera hearing to determine
whether the trial court properly followed these procedures and
whether its ruling was correct. We have reviewed these items,
and independently conclude that the court followed the above
stated procedures, and that it properly declined to order
disclosure of the sealed portions of the affidavit and properly
ruled that there was no reasonable probability that defendant
would prevail on his motion to suppress. (People v. Martinez
(2005) 132 Cal.App.4th 233, 241 [de novo review].)
B. Pitchess Motion
The personnel records of law enforcement officers are
privileged (§§ 832.5, 832.7 & 832.8), and may be disclosed only if
a trial court (1) determines that there is “good cause” to conduct
an in camera review of the personnel records; and (2) after such
review, determines which records are “relevant to the subject
matter involved in the pending litigation.” (Evid. Code, § 1045;
People v. Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc).) If the court
determines that an in camera hearing is warranted, the
custodian of the personnel records must bring “all ‘potentially
relevant’” materials to the court and state what other documents
in the personnel file were not brought and why, and the trial
court must thereafter review those records and order any
relevant records disclosed. (Mooc, at pp. 1228-1229.) We
independently review the sealed records, but review the trial
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court’s determination of what is relevant for an abuse of
discretion. (People v. Myles (2012) 53 Cal.4th 1181, 1209
(Myles).)
Our review indicates no error. We have reviewed the
sealed transcript of the in camera hearing (Myles, supra, 53
Cal.4th at p. 1209 [review of sealed transcript is sufficient]), and
conclude that the trial court did not abuse its discretion by
refusing to disclose any other information produced in response
to the discovery motion. (Mooc, supra, 26 Cal.4th at p. 1229.)
III. In Accordance with Assembly Bill No. 1950, the Term
of Defendant’s Probation Is Reduced from Five Years to
Two Years
While this appeal was pending, AB 1950 took effect on
January 1, 2021. (Stats. 2020, ch. 328, § 2.) AB 1950 reduced the
maximum probation term for most felony offenses to two years.
(§ 1203.1, subds. (a) & (m).) Because the reduction in the length
of the probation term has an ameliorative effect, we presume that
our Legislature intended to make its effect retroactive to nonfinal
convictions in the absence of an express savings clause specifying
a contrary intent. (In re Estrada (1965) 63 Cal.2d 740, 744–747.)
AB 1950 contains no such savings clause. Therefore, in
accordance with AB 1950, the maximum term of defendant’s
probation as to counts 1 and 2 is now two years. (Accord, People
v. Sims (2021) 59 Cal.App.5th 943, 955-964 [reaching same
result]; People v. Quinn (2021) 59 Cal.App.5th 874, 879-885
[same].) We consequently remand the matter to the trial court to
correct the minute order governing the length and terms of
probation to reflect a two-year term of formal probation. Should
either the People or defendant wish to make further motions
regarding the length or terms of probation, each may file the
appropriate motion(s) with the trial court.
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DISPOSITION
The term of probation imposed as to counts 1 and 2 is
reduced from five years to two years. The trial court is directed
to correct the minute order to reflect the imposition of a two-year
term of formal probation, and to notify the Los Angeles County
Department of Probation of the change to defendant’s
probationary term. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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