P. v. Behnke

Filed 4/25/07 P. v. Behnke CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed.

Linda Acaldo, 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, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, Marissa Bejarano and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant guilty of possession of methamphetamine for sale (Health & Saf. Code, 11378). Defendant thereafter admitted that he previously had been convicted of possession of methamphetamine for sale within the meaning of Health and Safety Code section 11370.2, subdivision (c). Defendant was sentenced to a total term of four years four months in state prison. Defendants sole contention on appeal is that the trial court erred in denying his Pitchess^[1]motion. We reject this contention and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

On May 13, 2005, Riverside Police Officer Nick Kean was patrolling an area known for vehicle burglaries and narcotics in Riverside when he noticed defendant standing next to the drivers side of a pickup truck. A utility/tool box was attached to the truck, and its lid was up. Officer Kean ran a records check of the trucks license plates and discovered the plates were expired. The officer made contact with defendant and asked defendant if he had anything illegal in his truck. Defendant responded that he did not. Officer Kean then asked permission to search the truck, and defendant consented to the search.

Inside the utility box, Officer Kean found a white envelope. The envelope contained six individual baggies of methamphetamine (four baggies had white methamphetamine, and the other two had a gray-colored methamphetamine). All six baggies were later analyzed, and each baggie contained methamphetamine in the following net weights: 4.01, 0.55, 1.17, 1.15, 0.71, and 0.69 grams. The gross collective weight of the methamphetamine was 10.4 grams. The envelope also had two glass pipes, one with methamphetamine residue and the other without.

A search of defendants person revealed $274 in his pocket: two $100 bills, three $20 bills, one $10 bill, and four $1 bills. When the officer pulled the money out of defendants pocket, defendant said the money was for a storage payment. Defendant also told the officer that he was unemployed and had received the money as part of an inheritance when his father passed away in August 2004. Defendant further informed Officer Kean that the drugs were not for sale but for personal use. Defendant displayed no symptoms of being under the influence.

During trial, Detective Ronald Kipp testified as a narcotics expert in the packaging, sales, and distribution of methamphetamine. Detective Kipp confirmed he was never involved in the investigation of the case; however, he testified that in his opinion the methamphetamine had been packaged for sale and not personal use. Detective Kipp based his opinion on the amount of methamphetamine discovered, which was worth $400 to $500; the manner in which it had been packaged; and his prior information regarding defendant. Detective Kipp also explained that a user of methamphetamine will not typically buy more than a gram or 1.75 grams at a time and would not usually repackage it into smaller containers. The prosecution also established that defendant had been arrested in 1992 for possession for sales and had admitted at the time of that arrest that he had been selling drugs because times were hard, and he needed an income.

Defendant testified on his own behalf and denied he was going to sell the methamphetamine. Instead, defendant stated that the methamphetamine was for his personal use. He denied that he had six baggies of methamphetamine at the time of his arrest; he claimed he only had three baggies, which were in a Kodak film container inside the envelope. He explained that he placed the methamphetamine in the multiple baggies to keep himself in check and to control his daily ration or intake of methamphetamine. He stated he used half a gram a day.

Defendant also stated that he had purchased a quarter of an ounce of methamphetamine from a man named Ernie in a grocery store parking lot for $200. However, he admitted that at the time of his arrest he did not tell Officer Kean about Ernie. Defendant admitted that he had been selling drugs in 1992 and also admitted that he had been using methamphetamine on and off since 1997.

On rebuttal, Officer Kean testified that he did not repackage any of the methamphetamine he found in defendants truck. Officer Kean admitted that defendant seemed upset when he advised defendant at the time of booking that he was being booked for sales rather than possession for personal use.

II

DISCUSSION

Prior to trial, defendant filed a written Pitchess motion for pretrial discovery under Evidence Code section 1043.^[2] Among other things, defendant asked for all records pertaining to Detective Kipp related to any instance of relevant conduct, including but not limited to: [] (a) Fabrication of charges; or [] (b) Dishonesty[.] Defendant also asked for [a]ny and all documents as described above that record any complaints submitted by any person complaining of any misconduct cited . . . above. []  . . .  The information sought by [defendant] . . . includes, but is not limited to: [] (a) The names, addresses and telephone numbers of any person submitting complaints described . . . above; [] (b) The names, addresses and telephone numbers of any person or persons interviewed in connection with the investigation of the complaints described . . . above; [] (c) All tape recording and/or transcripts thereof, notes and memoranda by investigating personnel of any and all of the Departments named in this motion made pursuant to investigations described in . . . above; [] (d) Records of disciplinary actions as a result of any complaint or investigation described . . . above; and [] (e) The written procedures established by any and all of the Departments named in this motion to investigate citizen complaints. [] (f) The names and addresses of any law enforcement agencies previously employing the officer . . . and the nature and duration of that employment.

The motion was supported by exhibits and defense counsels declaration, stating he was informed and reasonably believe[d] that Detective Kipp testified falsely and untruthfully at the Preliminary Hearing in this case in violation of defendants civil rights. Counsel also stated: I have read a press account of Detective Kipp being investigated and involuntarily transferred within the Riverside Police Department for acts of dishonesty. I have also read a Transcript of a deposition given by Detective Kipp in the civil case of Salazar v. California Department of Food and Agriculture. In that transcript, Detective Kipp admits withholding the names of informants from the district attorney because the district attorney would in turn disclose that information to the defense attorney. He also admits to engaging in subterfuge to hide the name of an informant or even the fact that the informant exists . . . . (Italics added, fns. omitted.) In addition, counsel declared that Detective Kipps acts of dishonesty were relevant to defendants case to show the [o]fficer has a character for dishonesty and/or a racially motivated bias and/or . . . admission(s) for untruthfulness. Defense counsel further stated that the material sought against Detective may show that the officer had a habit for engaging in excessive or illegal force and brutality, engaging in illegal or false arrest, improper tactics, improper search and seizure, improper acts racially motivated, dishonesty and false imprisonment.

The Riverside City Attorney, on behalf of the Riverside Police Department and Detective Kipp, filed opposition to the motion, arguing that Detective Kipps personnel file was exempt from discovery pursuant to section 1047, as defendant failed to establish materiality between the records of complaints and underlying arrest; that defendant had failed to establish good cause for the disclosure of the personnel records; and that defendants request was unlawfully overbroad.

On September 2, 2005, after asking defense counsel whether she had reviewed Evidence Code section 1047, the trial court denied the motion.

Defendant contends the trial court prejudicially erred in denying his request for Detective Kipps records and requests that we remand the matter to the trial court with directions to conduct an in camera hearing to determine the relevance of the records.

The California Supreme Court has recognized that a criminal defendant may, in some circumstances, compel the discovery of evidence in the arresting law enforcement officers personnel file that is relevant to the defendants ability to defend against a criminal charge. (People v. Mooc (2001) 26 Cal.4th 1216, 1219.)

In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as Pitchess motions [citation] through the enactment of Penal Code sections 832 .7 and 832.8 and Evidence Code sections 1043 through 1045. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81, fns. omitted (City of Santa Cruz). These Penal Code sections define personnel records and provide they are confidential but are subject to discovery pursuant to certain procedures set out in the Evidence Code. (City of Santa Cruz, at pp. 81-82.) Sections 1043 and 1045, together, set forth the specific procedures for discovery of such personnel records. In adopting such statutory scheme, the Legislature not only reaffirmed but expanded the principles of criminal discovery articulated in Pitchess. (City of Santa Cruz, at p. 84.)

Sections 1043 and 1045 establish a two-step procedure for discovery of peace officer personnel records by a criminal defendant. First, section 1043 requires the defendant to file a written motion for discovery of peace officer personnel records. The motion must include [a] description of the type of records or information sought, supported by [a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that such governmental agency identified has the records or information from the records. [Citations.] . . . [] The second step is reached after [a] defendant makes a showing of good cause for the discovery. [Citation.] (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019-1020 (CHP).) That second step is an in camera examination of the [potentially relevant] records [in accordance with section 915] to determine whether they have any relevance to the issues presented in the current proceedings. (City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1143; see also City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 9; People v. Mooc, supra, 26 Cal.4th at p. 1229.) In addition to specific enumerated categories of exclusion of information,^[3]section 1045 provides general criteria to guide the courts determination [of relevance for disclosure] and insure that the privacy interests of the officers subject to the motion are protected.^[4](City of Santa Cruz, supra, 49 Cal.3d at p. 83.)

Thus, it has been said that [t]he relatively low threshold for discovery embodied in section 1043 is offset, in turn, by section 1045s protective provisions . . . . (City of Santa Cruz, supra, 49 Cal.3d at p. 83.) Such legislation was intended to balance the need of criminal defendants to relevant information and the legitimate concerns for confidentiality of police personnel records. (People v. Breaux (1991) 1 Cal.4th 281, 312.) The court in City of Santa Cruzstated: The statutory scheme thus carefully balances two directly conflicting interests: the peace officers just claim to confidentiality, and the criminal defendants equally compelling interest in all information pertinent to his defense. The relatively relaxed standards for a showing of good cause under section 1043, subdivision (b) â€‘‑ materiality to the subject matter of the pending litigation and a reasonable belief that the agency has the type of information sought â€‘‑ insure the production for inspection of all potentially relevant documents. The in camera review procedure and disclosure guidelines set forth in section 1045 guarantee, in turn, a balancing of the officers privacy interests against the defendants need for disclosure. (City of Santa Cruz, supra, 49 Cal.3d at p. 84; see also People v. Jackson (1996) 13 Cal.4th 1164, 1220.)

With respect to the materiality element of section 1043, subdivision (b)s good cause requirement, the Supreme Court has observed that a criminal defendants right to discovery is based on the fundamental proposition that [an accused] is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information. [Citation.] Pitchess made it clear that an accused . . . may compel discovery by demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial. [Citation.] In contrast to the detailed showing required by some civil discovery statutes [citations], the requisite showing in a criminal matter may be satisfied by general allegations which establish some cause for discovery other than a mere desire for all information in the possession of the prosecution. [Citation.] The information sought must, however, be requested with adequate specificity to preclude the possibility that defendant is engaging in a fishing expedition. (City of Santa Cruz, supra, 49 Cal.3d at pp. 84-85.) The high court clarified that a showing of good cause under sections 1043 and 1045 requires a defendant to demonstrate the relevance of the requested information by providing a specific factual scenario which establishes a plausible factual foundation for the allegations of officer misconduct committed in connection with defendant. [Citations.] (CHP, supra, 84 Cal.App.4th at p. 1020, italics added, quoting City of Santa Cruz, at pp. 85-86.)

Our Supreme Court in City of Santa Cruz also held that because section 1043 contains no requirement of personal knowledge on the part of the declarant or affiant, a declaration by counsel on information and belief is sufficient to state facts to satisfy the materiality component of that section. (City of Santa Cruz, supra, 49 Cal.3d at pp. 86-89.) The court further concluded that section 1043, subdivision (b) does not require personal knowledge of particular prior complaints or information, but only the reasonable belief that certain records may contain such earlier complaints or information. (City of Santa Cruz, at pp. 89-93.)

Once a court determines in camera that a defendant has shown the records contain information [that] is relevant to the subject matter involved in the pending litigation, (People v. Mooc, supra, 26 Cal.4th at p. 1226, quoting 1045, subd. (a)) or in essence that good cause and materiality have been shown, [a]n accused is entitled to any pretrial knowledge of any unprivileged evidence, or information that might lead to the discovery of evidence, if it appears reasonable that such knowledge will assist him in preparing his defense. . . . [Citation.] (People v. Gill (1997) 60 Cal.App.4th 743, 750.)

The California Supreme Court recently clarified that in order to prevail on a Pitchess motion a defendant must show good cause for the discovery by demonstrating the materiality of the requested information to the pending litigation. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) To meet this good cause requirement, defense counsel must provide a declaration that (1) propose[s] a defense or defenses to the pending charges, and (2) articulate[s] how the discovery sought may lead to relevant evidence or may itself be admissible [as] direct or impeachment evidence that would support the proposed defense or defenses. (Id. at p. 1024.) The declaration must also describe a specific factual scenario supporting the claimed officer misconduct, and there must be a plausible factual foundation for the scenario. (Id. at pp. 1024-1025.) The plausible factual foundation may be established by allegations in the declaration denying the facts described in the police report. (Ibid.) It may also be established or corroborated by witness statements and other relevant documents. (Id. at p. 1025.) What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents. [Citations.] (Ibid., italics added; accord, City of Los Angeles v. Superior Court (2002) 96 Cal.App.4th 255, 261, fn. 4; People v. Hustead (1999) 74 Cal.App.4th 410.)

A factually plausible scenario is one that might or could have occurred. (Warrick, supra, 35 Cal.4th at p. 1026.) The trial court then determines whether defendants averments, [v]iewed in conjunction with the police reports and any other documents, suffice to establish a plausible factual foundation for the alleged officer misconduct and . . . articulate a valid theory as to how the information sought might be admissible at trial. (Id. at p. 1025.)

The high court in Warrick explained this inquiry is made as follows: To determine whether the defendant has established good cause for in-chambers review of an officers personnel records, the trial court looks to whether the defendant has established the materiality of the requested information to the pending litigation. The court does that through the following inquiry: Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? Under what theory would the requested information be admissible at trial? If defense counsels affidavit in support of the Pitchess motion adequately responds to these questions, and states upon reasonable belief that the governmental agency identified has the records or information from the records [citation], then the defendant has shown good cause for discovery and in-chambers review of potentially relevant personnel records of the police officer accused of misconduct against the defendant. (Warrick, supra, 35 Cal.4th at pp. 1026-1027.)

Trial courts are vested with broad discretion when ruling on Pitchess motions (People v. Memro (1995) 11 Cal.4th 786, 832), and we review a trial courts ruling for abuse. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039, People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Mooc, supra, 26 Cal.4th at p. 1228; City of Los Angeles v. Superior Court, supra, 96 Cal.App.4th at p. 260 [[u]ltimately, whether a motion to discover police personnel records has been supported by an affidavit sufficient to show good cause and materiality of the requested information to the subject matter involved in the pending litigation is a factual determination made by the court in its sound discretion].)

Initially, we consider whether the trial court correctly ruled that section 1047 precluded disclosure of Detective Kipps records. Section 1047 provides in pertinent part: Records of peace officers or custodial officers . . . , including supervisorial officers, who either were not present during the arrest or had no contact with the party seeking disclosure from the time of the arrest until the time of booking, or who were not present at the time the conduct is alleged to have occurred within a jail facility, shall not be subject to disclosure. (See also Davis v. City of Sacramento (1994) 24 Cal.App.4th 393, 399-400.)

Alt v. Superior Court (1999) 74 Cal.App.4th 950 rejected the argument that section 1047 always limits disclosure to the records of officers involved in the defendants arrest or booking. In Alt, one police officer, Morrison, accused another officer, Alt, of engaging in insurance fraud. Alt filed a Pitchess motion seeking information from Morrisons personnel records. (Alt, at p. 952.) A declaration offered in support of the Pitchess motion alleged facts showing animosity between the two men, including that Morrison had filed a false complaint against Alt, Alt and other officers had complained about Morrisons work habits, and Morrison had made false complaints in retribution. Alt sought discovery to prove that Morrison had a motive to lie about him, among other things. (Id. at p. 953.) The City of Redding opposed the motion on the theory that the only time personnel records can be discovered is if they concern an officer who was present during the subject arrest or who had some sort of contact with the party seeking disclosure between the arrest and booking. (Id. at p. 957.) The appellate court directed the trial court to vacate its denial of the discovery request. (Id. at p. 959.) Alt explained that the citys characterization of section 1047 would largely supplant the general discovery standards set forth in sections 1043 and 1045 (Alt, at p. 957) and would run counter to the California Supreme Courts observation in People v. Memro, supra,38 Cal.3d at p. 679 that sections 1043 and 1045 do not limit discovery of police personnel records to cases involving altercations between police officers and arrestees. (Alt, at pp. 957-958.) Moreover, such a characterization would lead to absurd results and would be inconsistent with the legislative history of the statute. (Id. at pp. 958-959 & 959, fn. 4.) Instead, Alt reasoned that section 1047 constitutes a specific exemption from the general discovery provisions of sections 1043 and 1045. Section 1047 applies if the request for discovery involves an issue concerning an arrest or a postarrest/prebooking incident or their functional equivalent . . . . (Alt, at p. 952.) Because Alts request for discovery did not involve an issue concerning his arrest or any conduct from the time of his arrest to booking or the functional equivalent, section 1047 was inapplicable. (Alt,at p. 959.) In other words, Alt concluded that section 1047 permits discovery only as to those officers who actually played a role in the alleged misconduct.

With that understanding of section 1047 in mind, we cannot say the trial court abused its discretion in barring discovery of Detective Kipps personnel records pursuant to section 1047. Detective Kipps role in this case was limited to that of an expert witness on the customs and practices of the narcotics trade. Detective Kipps testimony essentially involved issues pertaining to defendants arrest, i.e., the customs and practices of methamphetamine dealers. Defendant claimed that at the time of his arrest he had the methamphetamine for his personal use; Detective Kipp testified that in his opinion, based on the amount of methamphetamine and the packaging defendant had in his possession at the time of his arrest, defendant possessed the methamphetamine for purposes of sales. In his Pitchess motion, defendant did not allege that Detective Kipp personally participated in misconduct in his case. Therefore, section 1047 does apply.

The trial court properly denied the Pitchess motion.

In any event, even if the trial court erred and defendant did make a showing of good cause in support of his request (see Warrick, supra, 35 Cal.4th 1011), any error was harmless in light of the extensive evidence linking defendant to the offense. A criminal defendant must demonstrate that the information he sought through discovery would have led to admissible evidence helpful to his defense. (People v. Hustead (1999) 74 Cal.App.4th 410, 418.) In this case, Officer Kean found a total of 10.4 grams of methamphetamine wrapped in six different baggies in a toolbox of defendants truck. Officer Kean also found $274 on defendants person in various denominations. Detective Kipp testified that in his opinion, based on the packaging and amount of methamphetamine, defendant possessed the methamphetamine for the purposes of sales. There was no question that defendant possessed the methamphetamine, that the methamphetamine was wrapped individually, and that defendant possessed $274 in cash. There was also no question that defendant had been arrested in 1992 for possession of drugs for sales. There was substantial evidence to show that defendant possessed the methamphetamine for purposes of sales.

On the other hand, defendants defense that he possessed the methamphetamine for personal use was incredible. There was no independent evidence, except defendants self-serving statement, to corroborate that he wrapped the methamphetamine individually to keep him in check or that he was not selling, trading, or distributing the methamphetamine. Defendant admitted that he used a half gram a day; however, he displayed no symptoms of being under the influence of methamphetamine. In addition, at trial, no evidence of official misconduct was apparent. Thus, there was no trial evidence to serve as the predicate for the admissibility of Pitchess-developed evidence of a pattern of official misconduct. (People v. Samuels (2005) 36 Cal.4th 96, 109-110; see People v. Watson (1956) 46 Cal.2d 818, 836.)

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

MILLER

J.

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^[1]Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

^[2] All future statutory references are to the Evidence Code unless otherwise stated.

^[3] Subdivision (b) of section 1045 specifically excludes from disclosure: (1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought. [] (2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code. [] (3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.

^[4] Subdivision (c) of section 1045 provides that where the issue in litigation concerns the policies or pattern of conduct of the employing agency, the court shall consider whether the information sought may be obtained from other records . . . which would not necessitate the disclosure of individual personnel records. Subdivision (d) provides for a discretionary protective order when the governmental agency seasonably requests and shows good cause for one, while subdivision (e) mandates a protective order in every case where discovery is permitted under section 1043, limiting such discovery to use only in a court proceeding pursuant to applicable law.