P. v. Denmark

Filed 7/27/07 P. v. Denmark CA2/3

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Marsha N. Revel, Judge. Affirmed.

Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Turchin and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Tyrone Prince Denmark appeals from the judgment entered following his conviction by jury of first degree residential burglary with a person present (Pen. Code,  459, 667.5, subd. (c)(21)) with admissions that he suffered a prior felony conviction (Pen. Code,  667, subd. (d)), a prior serious felony conviction (Pen. Code,  667, subd. (a)), and a prior felony conviction for which he served a separate prison term (Pen. Code,  667.5, subd. (b)). The court sentenced appellant to prison for nine years. Appellant contends that trial and sentencing errors occurred. We affirm the judgment.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on February 6, 2004, appellant burglarized a Los Angeles apartment where Diana Ng lived. We will provide additional facts below where pertinent.

CONTENTIONS

Appellant contends the trial court (1) erred by denying his Pitchess motion and (2) abused its discretion by denying his request to dismiss a prior felony conviction.

DISCUSSION

1. The Trial Court Properly Denied Appellants Pitchess Motion.

a. Pertinent Facts.

On May 12, 2004, appellant filed a pretrial discovery motion pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531. The motion sought an order requiring, inter alia, the Los Angeles Police Department (LAPD) to make available [a]ll complaints from any and all sources relating to acts of lying, false police reports, fabrication of evidence, racial bias, gender bias, ethnic bias, coercive conduct, [and] violation of constitutional rights, against Los Angeles Police Officers Jason Malik, Charles Patterson, and R. Duke.

The motion also sought [a]ll complaints . . . of officer misconduct amounting to moral turpitude . . . , including but not limited to allegations of false arrest, planting evidence, fabrication of police reports, fabrication of probable cause, false testimony, perjury, using excessive force, making false arrests, writing false police reports to cover up the use of excessive force, and false or misleading internal reports . . . . The motion sought related documents and information. Appellants trial counsel attached the pertinent police report, as well as her supporting declaration, to the motion.

(1) The Police Report.

(a) Events Leading to Appellants Detention.

The police report attached to the motion listed Patterson as the reporting officer and Duke as the arresting officer, and indicated, in pertinent part, as follows. About 5:55 p.m. on February 6, 2004, Los Angeles Police Officer Mark Kardiban was driving in Chinatown when he saw three Black males walking behind an older Asian female who was carrying bags. This caught Kardibans attention because there had been numerous purse snatchings in the area involving elderly Asian females. The female and the three males turned and walked westbound. As Kardiban passed the three males, they looked at him nervously several times. Kardiban stopped to watch the males. One of them was wearing a large black jacket with white writing.

On February 6, 2004, Rigoberto Molina was a security officer hired to patrol the Chinatown area. About 6:05 p.m., Molina, riding a bicycle, flagged down Kardiban. Molina told Kardiban that Victor Rodriguez, Molinas lieutenant, had told Molina via radio that a burglary had just occurred at 815 North Hill. Molina advised Kardiban that the suspects were three Black males, and one wore a large black jacket with white writing. Molina gave Kardiban additional information describing the suspects. Kardiban recognized the suspects description as matching the three persons whom he had seen in the same area about 5:55 p.m.

Kardiban conveyed the suspects description to Patterson and Duke. As Patterson and Duke were driving in the area, they saw two Black males, that is, appellant and William Shaw, sitting on a bus bench. Appellant was wearing a large dark jacket with white writing on it. When Kardiban arrived at the location, Shaw began walking away. Police detained appellant and Shaw.

(b) The Subsequent Investigation.

Paterson and Duke then went to the victims location at 815 North Hill. Diana Ng (Diana) was the victim. Diana told police the following. Diana was in her room when she heard a door in the apartment open or close. She went to her parents bedroom and saw three Black males inside. Diana yelled and the three males fled out the apartments back door. She chased the suspects down the rear exterior stairway, along the driveway, and onto the sidewalk. As Diana chased the suspects out the driveway, she saw Rodriguez a short distance away. She called out to him that the suspects had just robbed her house and she told him to get them.

Rodriguez told police the following. Rodriguez was riding in front of 817 North Hill. He saw the three suspects run out the driveway, then northbound toward him. Diana ran out and yelled that the suspects had just robbed her house. Rodriguez pursued the suspects. Rodriguez specifically noted the design on the back of appellants jacket and a large smudge on the back of Shaws jacket which resulted from a fall. Rodriguez also specifically noted the hairstyle of suspect three, who was wearing his hair in large buns. Suspect three ran eastbound. Rodriguez continued pursuing appellant and Shaw. Appellant and Shaw ran to a nearby intersection, where they boarded a bus. Rodriguez immediately told Molina via radio what had occurred.

Molina told police he received information regarding the burglary, including the suspects descriptions, from Rodriguez. As Molina was approaching a nearby intersection, he saw appellant and Shaw walking toward Molina. The suspects passed him, sat on the previously mentioned bus bench, and acted nervously.

Malik and his partner later took Diana and Rodriguez separately to field showups. During the field showup, Diana tentatively identified appellant as one of the persons she had seen in her house. Diana positively identified Shaw. Rodriguez positively identified appellant and Shaw.[1] Rodriguez indicated he recognized their faces and clothing, and remembered the design on the back of appellants jacket and the smudge on Shaws jacket.

After the field showups, Patterson returned to Dianas apartment. Diana indicated that her sisters glasses were missing from her sisters bedroom, and were found on the rear exterior stairway to the apartment. Connie Ng (Connie), Dianas sister, told police that she had seen Diana running down the sidewalk to Rodriguez and had seen Diana tell him what had happened. Connie also saw three suspects running, saw one of the suspects leave the other two, and saw the remaining two suspects board a bus. By the time Patterson spoke with Connie, appellant and Shaw already had been transported to jail. (c) Police Interviews.

Malik interviewed appellant at the police station. Malik admonished appellant concerning his Miranda rights, and appellant waived them. Appellant told Malik that appellant never entered the apartment and the whole idea was BGs.

Los Angeles Police Officer Ramirez interviewed Shaw. Ramirez admonished Shaw concerning his Miranda rights, and Shaw waived them. Shaw told Ramirez the following. Shaw, appellant, and BG had gone downtown to buy clothes. While downtown, BG asked Shaw if Shaw wanted to make money robbing people. Shaw indicated that he did not. They went to Chinatown, where they saw Kardiban. After Kardiban passed by, they changed directions and went up a driveway to Dianas apartment. At Dianas apartment they saw an open door, and BG opened it further. They all entered Dianas apartment. Shaw remained in the kitchen as a lookout while BG and appellant began searching the apartment. The suspects fled when they heard Diana yelling at them.

(d) Additional Information.

The police report also indicated the following. At the police station, appellant and Shaw said it was BGs idea to burglarize the house. Shaw said BGs real name was Delshawn Goss or something similar. Police later determined Gosss true name was Delshawn Gray, and his moniker was BG. Shaw positively identified a photograph of Gray as the third suspect in the present case.

Attached to the report were two statement forms, one pertaining to appellant, the other pertaining to Shaw. The forms stated appellant and Shaw received Miranda admonitions, waived their rights, and wanted to talk about what happened.

(2) The Supporting Declaration of Appellants Trial Counsel.

Appellants trial counsel submitted a supporting declaration. The declaration, after discussing the facts alleged in the police report, stated, The defense claims that this is a situation of officer dishonesty and creation of false police report. [Sic.] The defense expects the evidence to show that on the date of the incident [appellant] was in the Chinatown area with Mr. Shaw. They had come to the area to purchase a gift for [appellant]s mother. After looking around, they decided to return home [by] bus. While waiting at the bus stop for about 10 to 15 minutes, a police car came up to them. Neither [appellant] nor Mr. Shaw boarded a bus. When the officers approached, [appellant], in response to their questioning, admitted that he was on parole. Both were taken into custody. While at the police station, [appellant] remained silent. Thus, the defense expects the evidence to show that Officers Malik, Paterson and Duke are lying when they indicated in the police report that [appellant] gave an oral statement.

Clearly, as to the issue of the admission, it is a situation of the officers word against [appellant], and thus, the requested materials are quite relevant. This is a case in which the victim Ms. Ng cannot identify [appellant] as one of the suspects, and the security guards only place [appellant] in the area. Hence, the officers are lying and created a false police report related to [appellant]s alleged admission to bolster an otherwise weak prosecution case. Thus, the issue is the fabrication of an admission, falsification of Miranda advisement and waiver of Miranda advisement, lying and creation of false police reports.

The declaration indicated, inter alia, that the information sought was relevant to show the officers propensity to engage in excessive force and/or conduct involving moral turpitude.

(3) Proceedings on the Motion.

As discussed below, the primary issue in this case is whether officers engaged in misconduct by fabricating that appellant waived his Miranda rights and told police that he never entered the apartment and the whole idea was BGs. At the June 7, 2007 hearing on appellants Pitchess motion, a Los Angeles deputy city attorney represented LAPD. The deputy city attorney argued it was unlikely that Malik would fabricate an exculpatory statement or one referring to a person named BG. Appellant conceded that a fair interpretation of the police report might be that Malik told Patterson and Duke about appellants statement to Malik.

The court stated, The motions are denied for two reasons, the reason basically is the same as to both of them, . . . its not a plausible factual foundation. The court then stated, As to [appellant], I agree with [the deputy city attorney] when she says why would an officer fabricate a statement that says that he never entered the apartment and the whole idea was somebody elses? [] Now, that just doesnt make any sense whatsoever. If youre going to fabricate a statement, then the statement is going to be, I was involved. I mean, if its just a flat out lie, the guy didnt say anything and youre just going to make it up, that is not it. [Sic.] And so thats the reason for the denial as to [appellant].

b. Analysis.

Appellant claims the trial court erred by denying his Pitchess motion. We disagree.

(1) Pertinent Law.

In Warrick v. Superior Court, supra, 35 Cal.4th 1011, our Supreme Court observed that, to initiate discovery under a Pitchess motion, the defendant must file a motion supported by affidavits showing good cause for the discovery. This means demonstrating the materiality of the information to the pending litigation and stating upon reasonable belief that the police agency has the records or information. This two-part showing is a relatively low threshold for discovery. (Warrick, supra, 35 Cal.4th at p. 1019.)

Warrick teaches that, to show good cause, defense counsels affidavit must, inter alia, describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report. . . . [] In other cases, the trial court hearing a Pitchess motion will have before it defense counsels affidavit, and in addition a police report, witness statements, or other pertinent documents. The 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 is plausible when read in light of the pertinent documents . . . . (Id. at pp. 1024-1025.)

A defendant need not present a credible or believable factual account of police misconduct. As Warrick explained, this would suggest that the trial courts task in assessing a Pitchess motion is to weigh or assess the evidence. It is not. (Warrick, supra, 35 Cal.4th at p. 1026.)

The Warrick court held that a plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial. Such a showing put[s] the court on notice that the specified officer misconduct will likely be an issue at trial. [Citation.] Once that burden is met, the defendant has shown materiality under section 1043. (Warrick, supra, 35 Cal.4th at p. 1026.)

Warrick teaches that a plausible scenario of officer misconduct is one that might or could have occurred, and the good cause showing is a relatively low threshold. We note, however, that Warrick did not redefine the word plausible as synonymous with possible, and does not require an in camera review based on a showing that is merely imaginable or conceivable and, therefore, not patently impossible. Warrick permits courts to apply common sense in determining what is plausible, and to make determinations based on a reasonable and realistic assessment of the facts and allegations. (People v. Thompson (2006) 114 Cal.App.4th 1312, 1318-1319.)

(2) Application of the Law to This Case.

(a) The Trial Court Did Not Err by Denying the Pitchess Motion.

(i) Appellant Did Not Make A Good Cause Showing that Officers Fabricated His Miranda Admonition and Waiver, or His Statement.

Appellant claims he is entitled to information relating to dishonesty[2] of the officers because he made a good cause showing that they fabricated in their report that he waived his Miranda rights and made a statement. We disagree.

We have quoted the two paragraphs from counsels declaration pertinent to appellants alleged good cause showing. The first paragraph indicates, inter alia, that the defense expect[ed] the evidence[3] to show (1) specified alleged facts providing an innocent explanation for appellants presence and conduct in Chinatown, and (2) that appellant remained silent at the police station. On the basis of these alleged facts, the first paragraph alleges the defense expected the evidence to show the officers fabricated in the police report that appellant waived his Miranda rights and made an oral statement (hereafter, statement) to police. The second paragraph, largely legal argument, relies on the showing in the first paragraph and concludes that, as to the issue of the admission, it is a situation of the officers word against [appellant], . . . That is, the second paragraph relies exclusively on the first and impliedly denies that appellant made the statement.

However, first, as a matter of common sense, we agree with the trial court that it makes no sense that officers would fabricate the statement at issue here. The statement at least suggested appellant knew BG, was aware of the apartment, and was aware of a plan involving wrongdoing in connection with the apartment. However, the statement was clearly exculpatory to the extent appellant said the whole idea was BGs and appellant never entered the apartment. Appellant never claimed below that he did not know a person named BG.

Second, appellant concedes Malik claimed appellant made the statement at issue. There was no real dispute below that Patterson was the reporting officer and merely reported Maliks claim that appellant waived his Miranda rights and made the statement.

Appellant failed to show that Patterson or Duke fabricated that appellant made the statement. Appellant failed because those two officers were not percipient witnesses as to whether appellant made the statement. (Cf. People v. Hill (2005) 131 Cal.App.4th 1089, 1098.) Patterson did not fabricate merely by reporting what Malik told Patterson. And appellant failed to show that Malik fabricated the police report because there was no evidence he wrote it.

We conclude that, to the extent appellant claims he was entitled to information relating to the officers dishonesty because he made a good cause showing that they fabricated in their police report that he waived his Miranda rights and made a statement, the trial court did not err by denying appellants Pitchess motion.

(ii) Appellant Did Not Make A Good Cause Showing that Officers Fabricated Their Observations of Witnesses Identifying Appellant During Field Showups, and His Motion Was Otherwise Overbroad.

Appellant claims he is entitled to information relating to dishonesty of the officers because he made a good cause showing that they fabricated observations during field identifications. That is, he claims he made a good cause showing that the officers fabricated when they claimed they observed witnesses identify appellant during field showups. He also claims he made a good cause showing that the officers fabricated other matters. The claims are unavailing.

Appellant is raising these issues for the first time on appeal. We conclude he waived them. (Cf. People v. Saunders (1993) 5 Cal.4th 580, 589-590; People v. Benson (1990) 52 Cal.3d 754, 786-787, fn. 7; People v. Rogers (1978) 21 Cal.3d 542, 548.) This is equally true to the extent appellant claims he made a good cause showing of other police fabrications.

Moreover, even if the issues were not waived, the police report indicated, without factual contradiction, that witnesses identified appellant during field showups. Appellant does not expressly dispute the information in the police report that the witnesses identified appellant. In particular, appellant does not dispute that (1) Diana saw three suspects burglarizing her apartment and chased them, (2) Rodriguez saw the same suspects Diana was chasing, (3) Diana tentatively identified appellant and positively identified Shaw, and (4) Rodriguez positively identified appellant and Shaw. (See fn. 2.) However, appellant asserts the officers fabricated their observations that the witnesses identified appellant. Appellants scenario of police misconduct, which presents officers fabricating their observations of witness identifications which undisputedly occurred, is not plausible because it is not internally consistent.

We conclude that, to the extent appellant claims he was entitled to information relating to the officers dishonesty because he made a good cause showing that they fabricated observations during field identifications or engaged in other alleged fabrications, the trial court did not err by denying appellants Pitchess motion.

We also conclude that, to the extent appellants Pitchess motion requested information other than evidence relating to dishonesty,[4] the Pitchess motion was overbroad. (Cf. People v. Hill (2005) 131 Cal.App.4th 1089, 1096, fn. 7; see California Highway Patrol v. SuperiorCourt (2000) 84 Cal.App.4th 1010, 1021.) The trial court did not abuse its discretion by denying appellants Pitchess motion.

(b) Denial of the Pitchess Motion Was Not Prejudicial.

Even if the trial court erred by denying appellants Pitchess motion, the evidence at trial was largely consistent with the police version of what occurred as reflected in the police report. There is no dispute one or more persons burglarized Dianas apartment. At trial, Diana positively identified appellant as one of the burglars, Connie positively identified appellant as one of the persons running from the apartment, and Rodriguez positively identified appellant as one of the three persons whom Rodriguez saw fleeing. Appellant concedes the Peoples evidence established he was running from Dianas apartment. In defense, appellant presented evidence suggesting he was misidentified as one of the burglars. This was not a case in which officers were the sole source of incriminating evidence.

In People v. Samuels (2005) 36 Cal.4th 96 (Samuels), the defendant, charged with, inter alia, two murders, made a Pitchess motion. Our Supreme Court stated, The trial court denied the motion, holding that defendant failed to lay a proper foundation under Pitchess. Here, even if the trial court erred because defendant made a showing of good cause in support of his request (see Warrick v. Superior Court (2005) 35 Cal.4th 1011), such error was harmless in light of the extensive evidence linking defendant to the murders . . . . (People v. Watson (1956) 46 Cal.2d 818, 836.) (Samuels, supra, at p. 110.) Samuels reasoning that, in light of the evidence of guilt, any trial court error in denying the Pitchess motion was not prejudicial, is equally applicable here.

2. The Trial Court Properly Denied Appellants Motion to Strike the Prior Felony Conviction.

a. Pertinent Facts.

The information alleged, inter alia, that, based on a 1999 conviction for attempted first degree residential burglary in case No. YA040251, appellant suffered a prior felony conviction under the Three Strikes law. A preconviction probation report prepared for a March 2004 hearing reflects as follows. Appellant was born in 1979 and had a moniker. Appellant suffered a 1999 conviction for attempted burglary and receiving stolen property in case No. YA040251. In that matter, the court suspended proceedings and placed appellant on formal probation for three years. In August 2000, the court revoked appellants probation and ordered that the matter be heard with case No. VA060673. In September 2003, in case No. YA040251, the court sentenced appellant to prison for three years, concurrent with his sentence in case No. VA060673.

In September 2000, in case No. VA060673, appellant pled guilty to committing grand theft of property, and admitted having suffered a prior prison term for purposes of Penal Code section 667.5, subdivision (b). The court sentenced him to prison for two-years eight-months and, in September 2003, appellant was released on parole. In July 2003, appellant pled no contest to attempted receiving stolen property, a misdemeanor. In July 2004, a parole violation report was submitted based on appellants alleged commission of residential burglary. The probation report reflects appellant made himself available for parole supervision contacts, and his sister indicated he had enrolled in college. Appellant was unemployed, he was on parole at the time of his arrest in the present case, and he would remain on parole until September 24, 2006. The report recommended that the court deny appellant probation and sentence him to prison.

In the present case, in August 2004, appellant admitted in court that he had suffered a prior felony conviction under the Three Strikes law based on the 1999 conviction for attempted first degree residential burglary in case No. YA040251. On March 9, 2005, appellant filed a lengthy sentencing memorandum which included a request to strike, pursuant to Penal Code section 1385, appellants Three Strikes law prior

felony conviction.[5] In support of his request, appellant, in the written motion, argued as follows. Appellant would receive a lengthy sentence even if the court struck the prior felony conviction. Appellant made no physical contact with the victim, and no property loss occurred. Appellant was young, had a troubled background, was under the influence at the time of the present offense, and was only a passive participant.

On March 10, 2005, the People filed a sentencing memorandum and opposition to appellants request to strike the prior felony conviction. In May 2005, the court ordered a diagnostic study pursuant to Penal Code section 1203.03. The court indicated it wanted to consider everything it could to determine, inter alia, whether to strike the prior felony conviction. On September 26, 2005, the diagnostic study was filed with the court. It reflected a difference of opinion between the correctional counselor and a staff psychologist on the issue of whether appellant should be placed on probation. As a result, the associate warden reported that, following an administrative review, it had been determined that appellant was unsuitable for probation. The study also reflects appellant suffered a juvenile adjudication for burglary, and insisted he was innocent in the present case.

At sentencing on September 26, 2005, the court indicated it had read the probation report and the parties sentencing memoranda, including appellants request to strike the prior felony conviction and the Peoples opposition to that request. The court also indicated it had read the diagnostic study.

After argument, the court indicated as follows. The court had given the matter serious thought. The court was disappointed that appellant continued to protest his innocence in the present case. The court considered the statements which appellant and Shaw made to police after waiving their Miranda rights. Appellant claimed he was under the influence of sherms, but also protested his innocence. Someone perhaps had recommended probation based on the facts that appellants family supported him, his mother was a crack addict when appellant was abused, and appellant had substance abuse problems. However, appellant was not taking responsibility for anything, and his past conduct showed he had learned nothing.

The court said that, in 1999, appellant was convicted of attempted first degree residential burglary, he was placed on probation for three years with counseling, and a probation violation hearing had occurred. He later went to prison for two years, and subsequently had another case. The court denied appellants request to strike the prior felony conviction.

b. Analysis.

Appellant claims the trial court erroneously refused to strike, pursuant to Penal Code section 1385, appellants Three Strikes law prior felony conviction. We disagree. The court read the probation report, the parties sentencing memoranda, including appellants request to strike the prior felony conviction and the Peoples opposition thereto, and the diagnostic study. The court also heard argument from the parties.

If we accepted appellants claim, we would be holding that the courts denial of appellants request to strike the prior felony conviction was irrational, capricious, or patently absurd (People v. Delgado (1992) 10 Cal.App.4th 1837, 1845; In re Arthur C. (1985) 176 Cal.App.3d 442, 446) and without even a fairly debatable justification. (People v. Clark (1992) 3 Cal.4th 41, 111.) Based on the record in the present case, we cannot come to that conclusion. In light of the nature and circumstances of appellants current felony offense and the qualifying strike, and the particulars of his background, character, and prospects, appellant cannot be deemed outside the spirit of the Three Strikes law as to the strike, and may not be treated as though he previously had not suffered it. (Cf. People v. Williams (1998) 17 Cal.4th 148, 161-164.)

We hold that the trial courts order refusing to strike the Three Strikes law prior felony conviction was sound, and not an abuse of discretion. (Cf. People v. Williams, supra, 17 Cal.4th at pp. 158-164; People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055; People v. Askey (1996) 49 Cal.App.4th 381, 389.) None of the cases cited by appellant, or his argument, compel a contrary conclusion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

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[1] The police report states, [Diana] allegedly identified Mr. Shaw, but was not sure that [appellant] was one of the male blacks in her home. Another field identification was conducted with [Rodriguez], who identified Shaw and [appellant]. (CT/61)

[2] By information relating to dishonesty, we refer to (as phrased by appellant in his motion), acts of lying, false police reports, fabrication of evidence, and officer misconduct amounting to moral turpitude, including but not limited to allegations of false arrest, planting evidence, fabrication of police reports, fabrication of probable cause, false testimony, perjury, and/or making false or misleading internal reports.

[3] We assume that appellants prefatory statement that the defense expects the evidence to show specified alleged facts is not impermissibly conclusory. (Cf. Dell M. v. Superior Court (1977) 70 Cal.App.3d 782, 784-787; In re Valerie E. (1975) 50 Cal.App.3d 213, 217-219; see People v. Memro (1985) 38 Cal.3d 658, 676.)

[4] By information other than evidence relating to dishonesty, we refer to (as phrased by appellant in his motion), information pertaining to racial, gender, or ethnic bias, coercive conduct, a violation(s) of constitutional rights, use of excessive force, and writing of false police reports to conceal the use of excessive force.

[5] The sentencing memorandum was 14 pages, attached to which were an 11-page mitigation memorandum plus 113 pages of exhibits. The exhibits were copies of appellants school records, his dependency records, letters of support from his family, and early photographs of appellant and his younger brother.