P. v. Bazik

Filed 4/13/07 P. v. Bazik CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court for the County of Los Angeles. Craig E. Veals, Judge. Affirmed.

Russell Fong, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Defendant and appellant Valod Bazik appeals from the judgment entered following a jury trial that resulted in his conviction of possession for sale of heroin and offering to sell heroin.^[1] He contends he was denied due process as a result of: (1) the denial of his Pitchess^[2] motion and (2) being sentenced to the upper term in violation of his right to a jury trial. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence adduced at trial established that at about 9:00 p.m. on August 23, 2005, Los Angeles Police Officers Jorge Trejo and Eric Rogers were dressed in plain clothes and parked in an unmarked police vehicle near 5th and Broadway when defendant approached and asked what they were looking for. After Trejo responded with the street name for heroin, defendant removed a package from his waistband and offered to sell it to the undercover officers for $70. Noticing that defendant had additional balloons in his mouth, Rogers asked for those as well, but defendant said they were for his personal use. Still posing as customers, the officers told defendant to walk to the corner, where they met him in their car. When defendant got into the car, the officers identified themselves and ordered defendant to spit out the balloons. Six balloons and the pack defendant had earlier taken from his waistband were recovered from defendants person. Later, during booking, a napkin containing seven more balloons and $231 in cash were also found on defendants person.^[3]The content of the pack and balloons was analyzed and determined to be heroin.

Using interpreters (first Armenian, then Farsi and then Armenian again), defendant testified that, at about 5:00 p.m. on August 23, 2005, he was in the area of 5th and Broadway when he purchased two packs of heroin for his own use.^[4] During the next several hours, defendant stayed in the downtown area and personally used six or seven of the balloons from one pack to get high; he wrapped the remaining six or so balloons from that pack in a tissue which he hid in his underwear; he put six balloons from the second pack in his mouth and put the remainder in a bag in his waistband. Some time between 9:00 and 10:30 p.m., defendant was back in the area of 5th and Broadway when he stopped on that corner to speak to two acquaintances: a girl on a bicycle and a pedestrian; he did not buy anything from either of them. Following that conversation, defendant was walking down 5th toward Spring Street when a car in which two men were driving towards him pulled over. Because the men wore clean clothing and were driving a sheik car [sic], he assumed they were rich, normal people; when the driver gestured to defendant to come to the car, defendant thought the men needed directions and he walked over. When defendant asked the men why they had called him over, the driver said chiva, which is vernacular for heroin. Defendant told the men: Im not the person that you can buy substance from me. I am the buyer myself for my own use. Im not the seller.

Defendant testified: Then with the instance [sic] like commercial and pleasing that they said, If you are kind enough we need a pack and then we will pay you a good price and you would be kind enough to give us some from your own use. And they even realized that I had a few balloons in my mouth and they asked me about the good price that they offered me to sell with the good price that they offered. And the price that they offered was about 10 times more than the price I would buy for myself. Defendant denied initiating the transaction, explaining: Theyre the ones who first pled with me and asked me to sell them. And of course, you know, this was a business for me and of course anyone who does business expects a favor. I wanted to sell it at a better price so I could buy twice as much for myself.

Defendant explained that the deal the men proposed was attractive because they offered to buy a pack of heroin for $70 and for $70 defendant could buy two packs of heroin. When the driver asked to see the contents of the bag defendant was holding in his hand, defendant said  I cannot do that there must be [a] transaction between us.  Defendant offered to complete the transaction in the back seat of the car, but when the driver hesitated, defendant changed his mind about completing the transaction. However, when the driver told defendant to walk to the corner, defendant complied and stood there for between 10 and 15 minutes waiting for the men in the car to meet him. As he approached the car, defendant noticed that the man in the front passenger seat had moved to the back seat; when defendant tried to open the front passenger door, the driver directed defendant to get in the back seat. Defendant did so and while defendant and the man in the back seat exchanged greetings, the driver got out and stood next to the door, blocking defendants exit. Whereupon, the men revealed that they were police officers and that defendant was under arrest. Defendant believed he was entrapped because, when he agreed to sell the men heroin, he did not know they were police officers and that he would be caught.

Following the jurys guilty verdict and true finding on the prior conviction allegations, defendant was sentenced to eight years in prison.

He filed a timely notice of appeal.

DISCUSSION

1. Pitchess

Defendant contends the trial court erred in denying his Pitchess motion. He argues: [Defendant] made a sufficient showing of a plausible factual scenario because his factual account was internally consistent and complete. [His] defense was that he possessed heroin for personal use, the officers entrapped him into selling the heroin, and then the officers lied about the entrapment. We disagree.

Pitchess motions are procedural mechanisms for criminal defense discovery, which must be viewed against the larger background of the prosecutions constitutional obligation to disclose to a defendant material exculpatory evidence so as not to infringe the defendants right to a fair trial [citations] . . . . [] The statutory scheme is set forth in Evidence Code sections 1043 through 1047 and Penal Code sections 832.5, 832.7 and 832.8. (People v. Mooc (2001) 26 Cal.4th 1216, 1225-1226, fn. omitted (Mooc).) The Penal Code provisions designate peace officer personnel records as confidential, while the Evidence Code sections provide the specific procedures that must be followed to obtain discovery of the otherwise confidential personnel records. (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019.) To obtain this discovery, a defendant must file a written motion including  [a]ffidavits showing good cause for the discovery sought, setting forth the materiality thereof to the subject matter involved in the pending litigation . . . .  (Mooc, supra, at p. 1226.)

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. [Citation.] (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 (Warrick).) It 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. [Citation.] (Ibid.) A defendant seeking Pitchess discovery must establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officers version of events. (Id. at p. 1021.) The information sought must be limited to instances of officer misconduct related to the misconduct asserted by the defendant. (Ibid.) What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the affidavit submitted in support of the motion, the police report, witness statements, or other pertinent documents. (Id. at p. 1024.)

In California, the test for entrapment focuses on the police conduct and its objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense. [Citation.] [S]uch a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect-for example, a decoy program-is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime. [Citation.] (People v. Watson (2000) 22 Cal.4th 220, 223.)

Reyes v. Municipal Court (1981) 117 Cal.App.3d 771, in which the defendant alleged entrapment as a defense to the charge of soliciting an act of prostitution from an undercover police officer, is instructive. In that case, the defendant, complaining that he was deceived by the undercover officer, sought discovery of, among other things, complaints filed with the police department alleging that the officer acted in the manner of a prostitute, solicited acts of prostitution, conducted herself in a manner unbecoming an officer, made false arrests, and fabricated charges. (Id. at p. 774.) This would show, he argued, the officers character trait or habit of engaging in entrapment and would enable [the defendant] to impeach [the officers] testimony. (Ibid.) The municipal court denied the request and the appellate court affirmed, reasoning that ruses, stings, and decoys are permissible strategems in the enforcement of criminal law, and they become invalid only when badgering or importuning takes place to an extent and degree that is likely to induce an otherwise law-abiding person to commit a crime. (Id. at p. 777.) The court found little merit in [defendants] assumption that the additional information sought could corroborate his entrapment defense and produce something of potential probative value. The encounter between [the defendant and the undercover officer] involved its own unique set of facts and circumstances, one essentially involving words and gestures exchanged between the two on a street corner. The key issue is who solicited whom. (Id. at p. 777.) The court explained that, whereas personnel records evidencing an officers propensity for violence may be relevant to a claim that the officer used excessive force against the defendant, it is not feasible to infer from conduct on other occasions that an officer is emotionally inclined to or has a propensity to resort to excessive enticements to provoke solicitations, and therefore did so in this case. Either she solicited [the defendant] or she did not. What was said or done by the officer and other persons on other occasions has little or no pertinency to the issue here. The narrow question is who invited whom to participate in an act of prostitution. That issue must be resolved by the testimony of the percipient and auditory witnesses. Consequently, evidence of [the arresting officers] statements and conduct on other occasions is inadmissible to prove or disprove her statements and conduct on this occasion. (Evid. Code,  787, 1101, subd. (a).) (Id. at p. 777.) The court in Reyes concluded: In some instances the line between lawful presentation of an opportunity to commit a crime and unlawful entrapment may be difficult to draw, but we have no difficulty drawing the line in favor of law enforcement in this instance. (Id. at p. 777.)

Here, defendant filed a pre-trial Pitchess motion seeking, in pertinent part: (1) All complaints from any and all sources relating to acts of violation of constitutional rights, fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion and/or probable cause, illegal search/seizure; false arrest, perjury, dishonesty, writing of false police reports, planting of evidence, false or misleading internal reports including but not limited to false overtime or medical reports, and any other evidence of misconduct amounting to moral turpitude . . . against officer(s) [Trejo and Rogers]. Defendant specifically requests production of the names, addresses, dates of birth, and telephone numbers of all person who filed complaints, who may be witnesses, and/or who were interviewed by investigators or other personnel from the City of Los Angeles Police Department, the dates and location of the incidents complained of, as well as the date of the filing of such complaints. [] (2) The defendant is entitled to discovery of any discipline imposed upon the named officers as a result of the investigation of any citizen complaint described in items one. [Citation.] (Italics in original.)^[5] Defense counsels declaration submitted in support of the motion averred that the requested material was relevant because [t]he defense will contend that the officers lied about how this incident occurred. According to the police report and Officer Trejos testimony at the preliminary hearing, defendant approached the officers and offered to sell and eventually sold them heroin.[^[6]] The defense will contend that the officers, in fact, approached the defendant and asked to buy drugs. Defendant at first declined. After repeated requests, defendant informed the officers that he only had drugs for his personal use. Only after even further requests and pleadings about how desperate they were did the defendant agree to sell the drugs he intended to use for his personal use to the officers, who were in an undercover capacity at the time. Thus, defendant would argue that he was entrapped to sell the drugs by the officers and had no predisposition to sell the heroin during the incident in question.[^[7]] [] These materials would be used by the defense to locate witnesses to testify that the officer has a character trait, habit, and custom of engaging in misconduct of the type alleged in this case. The trial court denied the motion finding that, even under the liberal standard articulated in Warrick, defendant failed to present the requisite plausible factual scenario of officer misconduct. Reviewing that decision for abuse of discretion (Mooc, supra, 26 Cal.4th at p. 1216), we find none.

Under Reyes, there is not the requisite logical link between defendants proposed entrapment defense and any complaints of past officer misconduct because it is not feasible to infer from conduct on other occasions that an officer is emotionally inclined to or has a propensity to resort to excessive enticements to provoke a law-abiding person to commit a crime. Moreover, even giving credence to defendants version of events the undercover officers approached defendant to buy drugs, defendant at first declined but acceded after the officers made repeated requests and pleaded desperation the officer conduct he describes does not, as a matter of law, constitute conduct that is likely to induce a normally law-abiding person to sell heroin. Accordingly, defendant has failed to present the specific factual scenario of officer misconduct necessary to obtain Pitchess discovery. (Warrick, supra, 35 Cal.4th at p. 1024.)

2. Cunningham Error

Also without merit is defendants contention that his due process rights were violated by imposition of the upper term in violation of his right to a jury trial. Under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), facts that increase the penalty for a crime from the statutory maximum must be pleaded, submitted to a jury and proved beyond a reasonable doubt, unless the defendant waives a jury and admits the facts. (See also U.S. v. Booker (2005) 543 U.S. 220 (Booker).)

In Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 856] (Cunningham), the United States Supreme Court recently held that the middle term in Californias determinate sentencing law is the relevant statutory maximum for the purpose of applying Blakely and Apprendi. (Cunningham, supra, at p. 868.) However, Cunningham also reaffirmed that Blakely and Apprendi do not apply to facts relating to the defendants recidivism: As this Court's decisions instruct, the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.] (Cunningham, supra, at p. 860, italics added.)

Here, the trial court based its selection of the upper term on the following aggravating factors: (1) defendants prior convictions were numerous or of increasing seriousness; (2) defendant was on probation or parole when he committed the instant offense; and (3) defendants prior performance on probation was unsatisfactory (Cal. Rules of Court, rule 4.421(b)(2), (4), (5)). No other aggravating circumstances were considered.

It is true that these three factors were not strictly   the fact of a prior conviction.   (Blakely, supra, 542 U.S. at p. 301, emphasis added.) However, [c]ourts have construed Apprendi as requiring a jury trial except as to matters relating to recidivism. Courts have not described Apprendi as requiring jury trials on matters other than the precise fact of a prior conviction. Rather, courts have held that no jury trial right exists on matters involving the more broadly framed issue of recidivism. [Citations.] (People v. Thomas (2001) 91 Cal.App.4th 212, 221.)

Nothing in Blakely or Cunningham changes the corrections of the Thomas analysis of the breadth of Apprendi on this subject. Accordingly, we conclude appellant was not entitled to a jury trial on the three aggravating factors, and appellant was lawfully sentenced to the upper term.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J.

BOLAND, J.

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^[1] Defendant was charged with possession for sale of heroin (Health & Saf. Code,  11351) and offer to sell heroin (Health & Saf. Code,  11352, subd. (a)); a prior drug-related conviction was also alleged.

^[2]Pitchess v. Superior Court (1974) 111 Cal.3d 531.

^[3] Peoples Exhibit 1 (photograph of the six balloons, pack and napkin-wrapped-seven-balloons recovered from defendants person); Peoples Exhibit 2 (photograph of six balloons recovered from defendants mouth); Peoples Exhibit 3 (photograph of the front of the analyzed evidence envelope into which Rogers placed the evidence); Peoples Exhibit 4 (photograph of the back of the same analyzed evidence envelope).

^[4] Defendant explained that a pack of heroin usually contains about 12 balloons.

^[5] Contrary to the requirements of former California Rules of Court, rule 31(b)(13)(A) which was in effect at the time the record was certified (see current rule 8.320(b)(13)(A)), defendants Pitchess motion was not included in the Clerks Transcript; the Peoples opposition was included. Pursuant to Evidence Code sections 459, subdivision (a) and 452, subdivision (d), we take judicial notice of the motion which is found in the superior court file.

^[6] Defendants arrest report was submitted in support of the motion. In it, Rogers described the incident as follows: My partner and I temporarily stopped our vehicle on 5th Street just east of Broadway along the south curb. . . . [A] male suspect walked up to the drivers side of the vehicle. My partner had his window down. The Suspect looked inside our vehicle and spontaneously asked, what are you guys looking for? My partner said, chiva (street vernacular for heroin). Then, the following conversation took place: [] Suspect how much you looking for? [] Officer Trejo: a pack (street vernacular for 12 balloons) [] Suspect OK, give me $70. [] The Suspect then reached in the front of his waistband and pulled out a clear baggy with several balloons in it resembling a pack. Also, it appeared that he had something else in his mouth. I leaned over and said for $70, give us whats in your mouth, too. The Suspect said, No, thats my own stuff. 

^[7] We note that, under the California test for entrapment,  such matters as the character of the suspect, his predisposition to commit the offense, and his subjective intent are irrelevant. [Citation.] (People v. Smith (2003) 31 Cal.4th 1207, 1216.)