P. v. Cromwell

Filed 10/30/07 P. v. Cromwell CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

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Following denial of his motion to suppress evidence and partial denial of his Pitchess^[1]motion, defendant Chezarae Cromwell pled no contest to resisting an officer (Pen. Code, 69).^[2] On appeal, defendant contends (1) the trial court erred in the compliance with and ruling on the Pitchess motion; (2) the trial court erred and abused its discretion in denying the Pitchess motion as to one police officers records for dishonesty, denying defendant his due process rights; and (3) imposition of the aggravated sentence of three years violated Cunningham v. California (2007) 549 U.S.__ [127 S.Ct. 856] (Cunningham). We will affirm the judgment.

PROCEDURAL SUMMARY

On July 28, 2006, the Kern County District Attorney charged defendant with the willful and unlawful use of force upon an officer, resulting in the infliction of serious bodily injury ( 243, subd. (d); count 1), resisting an executive officer ( 69; count 2), and assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1); count 3). The information further alleged that all three counts were subject to a gang enhancement pursuant to section 186.22, and as to count three, that defendant inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).

Defendant filed a Pitchess motion for discovery of the records of Bakersfield Police Officers Kauffman, Findley and Hernandez. Defendant also moved to suppress evidence, including police observations, photographs and statements made by defendant. In opposition to the Pitchess motion, the real party in interest reasoned that there are no statements by [Hernandez] other than what Officer Kauffman told him and because all [Hernandez] says is that he saw the defendant run, which is not denied. The trial court granted the Pitchess motion in part, granting review of Kauffmans, Findleys and Hernandezs records for excessive force and review of Kauffmans and Findleys records for dishonesty. The court denied review of Hernandezs records for dishonesty. The court also denied defendants motion to suppress evidence.

Defendant then entered an unconditional no contest plea to count two, resisting an officer. The trial court struck the gang enhancement on count two and dismissed the remaining counts. Based on a lack of any mitigating factors, defendants prior convictions and his prior performance on probation, the court sentenced defendant to the aggravated term of three years in state prison.

FACTS

On July 8, 2006, Kauffman and Hernandez stopped a vehicle for failing to display a rear license plate. Conducting a probation search, Kauffman asked defendant, a backseat passenger, to get out of the vehicle. After Kauffman initiated a pat-down, defendant started to run and while Hernandez returned to the car, Kauffman continued to chase defendant. During a struggle, defendant punched Kauffman and grabbed his baton. Then Kauffman hit his head on the ground and became dizzy. Finally, additional officers arrived and arrested defendant, and Kauffman received subsequent medical attention. Visiting Kauffman at the hospital, Hernandez recorded testimony from Kauffman.

DISCUSSION

I. Pitchess Review

Defendant requests an independent appellate review of the sealed records of the trial courts hearing on the Pitchess motion. The People do not object to a review. We have examined the sealed records and conclude the court did not abuse its discretion. The hearing did not disclose any additional evidence that Kauffman, Hernandez or Findley engaged in excessive force or that Kauffman or Findley engaged in dishonest conduct.

II. Pitchess Motion

Defendant contends the trial court abused its discretion by denying the Pitchess motion as to Hernandezs records for dishonesty, denying defendant his due process rights. Because defendant pled no contest, however, he cannot now challenge the facts underlying the conviction. (People v. Martin (1973) 9 Cal.3d 687, 693.) A voluntary plea of guilty is the equivalent of a conviction of the crime and includes an admission of every element of the crime. (People v. Enos (1973) 34 Cal.App.3d 25, 40-41.)^[3] Asserted Pitchess violations are not cognizable on appeal arising from a guilty plea. A Pitchess motion is a challenge to the legality of the discovery process and discovery matters are waived by a guilty plea. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) A Pitchess motion is in essence a discovery motion because it enables the finding of facts and a fair trial. (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 536.) Since the motion relates solely to the defendants guilt or innocence, the issue does not survive a guilty plea. (People v. Collins (2004) 115 Cal.App.4th 137, 148.) After a guilty plea, a Pitchess motion is not cognizable on appeal unless the motion is intertwined with the legality of the search. (Id. at pp. 148-151; People v. Meyer (1986) 183 Cal.App.3d 1150, 1157-1158 [under 1257.5, only constitutional, jurisdictional, or other grounds going to the legality of the proceedings, survive a guilty plea].) Accordingly, defendants no contest plea admitted every element of the crime and waived any discovery issues.

Furthermore, even if the Pitchess motion was intertwined with the motion to suppress evidence, the issue still fails on the merits. Evidence Code section 1043, subdivision (b)(3) requires a defendant requesting discovery of personal records to show good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation . The information must be requested with sufficient specificity to avoid fishing for information. (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 538.) To show good cause, the declaration must give a defense to the charges and describe how the disclosure sought may lead to relevant evidence. The affidavit must also give a specific factual scenario that is plausible when read in light of pertinent documents. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024-1025, 1029 [factual scenario may consist of a denial of the facts asserted in the police report and does not have to be reasonably probable or credible]; People v. Collins, supra, 115 Cal.App.4th at p. 151 [insufficient showing of a factual scenario because the officers were not involved in the attempted visual body cavity search and defendants declaration merely made general allegations of misconduct without alleging any facts that provided reason to believe misconduct had occurred]; People v. Thompson (2006) 141 Cal.App.4th 1312, 1317 [defendant failed to show good cause because the showing was not internally consistent or complete and simply denied the elements of the offense].) Whether a defendant showed good cause is within the trial courts discretion, and on appeal we review the courts denial of the Pitchess motion for abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)

Here, defendant alleged he was improperly detained and violently grabbed by the officers. He alleged he did not assault any officer in any way and that any resistance was in defense of excessive force. He alleged he was knocked down without a good reason and was significantly injured as a result. He also alleged the officers built a case around him due to their subjective belief that he was a gang member and they falsified information recorded in the police reports.

The record demonstrates that Hernandezs involvement was limited to his undisputed testimony of defendant fleeing the scene and that he merely recorded testimony from another officer. Given the undisputed testimony and defendants no contest plea, the alleged facts do not provide a plausible factual foundation for Hernandezs alleged misconduct. In light of defendants plea of no contest, the alleged misconduct is internally inconsistent with the record. We conclude the trial court did not abuse its discretion by denying review of Hernandezs record for dishonesty.

We also reject defendants claim that his due process rights were violated by the partial denial of his Pitchess motion. Under Brady v. Maryland (1963) 373 U.S. 83 at pages 86-87, a defendant has the right to material evidence in order to receive a fair trial. (People v. Mooc (2001) 26 Cal.4th 1216, 1225.) Californias Pitchess standard creates both a broader and lower threshold for disclosure than does the high courts decision in Brady. (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 14.) Here, defendant was unable to satisfy the Pitchess requirements and therefore was unable to satisfy the Brady requirements.

III. Aggravated Sentence

Defendant contends the court violated Cunningham by imposing the upper term of three years for resisting an officer based on facts not found by the jury. This argument has no merit.

First, defendant agreed to the terms of the plea bargain, which included a possible three-year state prison sentence. Because defendants contention questions the validity of the negotiated sentence, a certificate of probable cause is required. (People v. Shelton (2006) 37 Cal.4th 759, 766-771.) The record does not contain a certificate of probable cause and therefore defendant cannot now challenge his sentence.

Furthermore, defendants three-year sentence does not violate Cunningham. Cunningham held that the upper term could be imposed if the jury finds the factual basis or if it is stipulated to by the defendant. (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868]; see also People v. Black (2007) 41 Cal.4th 799, 813 [if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum].) By entering into a plea agreement, a defendant effectively stipulates to a factual basis for the imposition of the maximum term within the plea agreement. (People v. Shelton, supra, 37 Cal.4th at p. 768.) [T]he specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term. (Ibid.)

Defendant testified he understood the terms of his plea bargain and that he was facing a sentencing range of 16 months to three years in state prison. He also stipulated to a factual basis for the plea agreement. Later, the trial court sentenced defendant to three years in state prison, the aggravated term within the sentencing range. Under these facts, Cunningham was satisfied.

DISPOSITION

The judgment is affirmed.

_____________________

Kane, J.

WE CONCUR:

_____________________

Dawson, Acting P.J.

_____________________

Hill, J.

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

^[2] All statutory references are to the Penal Code unless otherwise noted.

^[3] A no contest plea has the same legal effect as a guilty plea. (People v. Hobbs (1994) 7 Cal.4th 948, 955.)