P. v. Garcia

Filed 4/18/07 P. v. Garcia CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Conditionally reversed and remanded.

Lea Rappaport Geller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr. and Bill Lockyer, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Deputy Attorney General and Robert F. Katz, Supervising Deputy Attorney General for Plaintiff and Respondent.

Appellant Jimmy Renne Garcia was convicted of possession of a controlled substance and sentenced to a total of eight years imprisonment. He appeals the conviction and sentence, contending the court erred in denying his pre-trial Pitchess motion for discovery and in imposing an upper term sentence.^[1] We conditionally reverse and remand for an in camera review of the personnel records of the two deputies who arrested appellant and appeared as witnesses at his trial.

FACTUAL AND PROCEDURAL BACKGROUND

Charges

Appellant Jimmy Renne Garcia was charged with one count of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). It was further alleged that appellant had suffered the following prior convictions: (1) two prior serious or violent felony or juvenile convictions within the meaning of Penal Code sections 1170.12, subdivision (a) through (d) and 667, subdivisions (b) through (i); (2) four prior convictions within the meaning of Penal Code section 667.5, subdivision (b); and (3) two prior felony convictions within the meaning of Penal Code section 1203, subdivision (e)(4).

Pitchess Motion

Appellant moved for pretrial discovery of the personnel records of various Los Angeles County sheriffs deputies pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531. The motion sought personnel records, including any records of complaints and disciplinary proceedings, for Deputy Charles McDaniel, Deputy Jose Garcia, Sergeant J. Ramirez, and other Narco La Puente Team participants.^[2] Appellant alleged that the named deputies fabricated probable cause; planted evidence; covered up the source of the Meth. drugs found at the scene of [appellants] detention; and were biased in a manner affecting the officers credibility and/or judgment, and falsified their Police Report, or fabricated an admission; illegally searched or seized a person; and engaged in acts of dishonesty and/or moral turpitude.

The incident report was attached to the moving papers as an exhibit. It stated that while conducting a surveillance of a taco stand in La Puente, Deputy McDaniel and Deputy Garcia observed the following: Appellant and a woman were sitting on a table. A man made contact with appellant and appeared to exchange cash for an unidentified item, which the man put in his mouth. The item was taken from a crumpled wad of white paper located on the table next to appellant. A second man approached appellant and engaged in a similar exchange. The deputies began to walk toward appellant. At that moment, a third man, riding past on a bicycle, warned appellant that the cops [were] up the street. Appellant immediately opened the crumpled paper and put something in his mouth. He then picked up another bicycle parked nearby and started riding away. While riding, he pulled a red and white GPC cigarette pack out of his pants pocket and threw it into the taco stands parking lot. Deputy McDaniel retrieved the pack. Inside it was a plastic ziploc baggie containing a substance later determined to be methamphetamine. The deputies arrested appellant. Appellant was asked what was in the cigarette pack he threw away, and he replied cigarettes. Asked why he would throw cigarettes away, he replied I dont know[,] they arent mine. Appellant also said he used to sell heroin and crystal a long time ago when he was younger.

In the declaration in support of the motion, defense counsel stated: [Appellant] is absolute[ly] adamant he did not possess the drugs alleged to have been tosse[d] by him during the detention. [Appellant] states the police are falsifying their report regarding observation[s] observed by them at the crime scene. . . . [T]his is brought out by the fact that two other persons arrested following an observed hand to hand sale of drugs were not prosecuted . . . and [appellant] was only charged with straight possession [rather than] [s]ales.

The trial court denied the motion, finding that appellant had failed to establish good cause in that he has not provided the court with a specific factual scenario upon which to base a plausible justification for disclosure.

Evidence at Trial

Deputy McDaniel and Deputy Garcia testified that on September 19, 2005, at approximately 6:30 a.m., they began watching a taco stand in La Puente, investigating complaints of drug sales from the location. They were there 30 to 40 minutes.

The deputies saw appellant sitting at an outside table. They observed a man walk up to appellant. After a brief conversation, appellant reached inside a crumpled piece of paper lying on the table in front of him and took something out, which he gave to the man in exchange for money. After the exchange, the man placed the item in his mouth. Another similar transaction took place a few minutes later.

The deputies became concerned that their operation had been discovered, and began to walk toward appellant. As they crossed the street in front of the taco stand, a man on a bicycle rode past appellant and told him the police were making arrests down the street. Appellant took something from the crumpled piece of paper on the table and put it in his mouth. He then got on a bicycle and started riding away. As he was riding, he yanked a cigarette pack out of his front pants pocket and threw it on the ground. It landed in the taco stands parking lot, where the deputies retrieved it. Inside the pack, the deputies found a ziploc baggie containing a crystalline substance. They found nothing inside the piece of paper on the table.

The deputies arrested appellant. After advising him of his Miranda rights,^[3]Deputy McDaniel asked what he was doing at that location. At first, appellant said he was just riding past on his bicycle. After being informed that the deputies had been watching him for 30 minutes, appellant changed his story and said he had stopped to talk to a friend. Deputy McDaniel asked him what was in the cigarette pack. Appellant said cigarettes and that they were not his. Appellant also told the deputies he had been stupid and messing up. He said he used to sell narcotics, but did not do so anymore. When booked at the station, appellant was in possession of $15.08 in currency.

The cigarette pack and its contents were booked into evidence. The substance found inside the pack was tested and determined to be .90 grams of a powder containing methamphetamine. In Deputy McDaniels opinion, this was a personal use amount.

Verdict and Sentencing

The jury found appellant guilty of the Health and Safety Code section 11377, subdivision (a) violation. The priors were tried to the court. The court found the priors to be true as pled.

At the sentencing hearing, the trial court discussed with counsel appellants prior criminal history in connection with defense motions for a new trial and to strike a strike.^[4] The court stated: In reviewing [appellants] lifetime achievements, it starts out back in 1982. And the probation department indicates that [appellant] stated some of these offenses occurred so long ago, he has no recollection. The court granted appellants motion to strike a strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced appellant as a second-strike offender.^[5]

When discussing whether to select the upper, lower, or mid- term, the court stated it was looking at the lifetime achievement that I mentioned a littler earlier including multiple tours in state prison and a record going back to 1982. The court imposed the upper term of three years, doubled to six years due to the prior strike, and added one year for each of the two felony priors, for a total of eight years.

DISCUSSION

I

Pitchess Motion

Although police officer personnel records are generally confidential, a criminal defendant is entitled to the discovery of such records if the information contained therein is relevant to his ability to defend the charges against him. (Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 537-538.) Appellant contends that the records he requested could have assisted in his defense and that his Pitchess motion was improperly denied. We agree in part, concluding that appellant presented sufficient cause to warrant an in camera review of the personnel records of Deputy McDaniel and Deputy Garcia.

A

Good Cause

We begin our analysis with the statutory provisions that codified Pitchess and outline the procedures by which a criminal defendant may discover confidential peace officer personnel records. Penal Code sections 832.7 and 832.8 make clear that peace officer personnel records are generally confidential; Evidence Code sections 1043 through 1045 provide the specific procedures that must be followed to obtain discovery of such records. In particular, Evidence Code section 1043, subdivision (b)(3) requires [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 . . . .

In City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, the Supreme Court held that the requisite showing of good cause 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 and that the information sought must be requested with adequate specificity to preclude the possibility that defendant is engaging in a fishing expedition. (Id. at p. 85, quoting Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 536-538.) The defendant in City of Santa Cruz was charged with resisting arrest. Defense counsels Pitchess declaration asserted that the officers used excessive force, and the police reports confirmed that considerable force was used to effect the arrest. The Supreme Court concluded that the declaration set forth a specific factual scenario to support the assertion that excessive force was used, and [v]iewed in conjunction with the police reports, the declaration establish[ed] a plausible factual foundation for an allegation of excessive force, put the court on notice that the officers alleged use of excessive force will likely be an issue at trial, and articulate[d] a valid theory as to how the information sought might be admissible. (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at pp. 85-86.)

In the wake of City of Santa Cruz, appellate courts have adopted a test for Pitchess motions that requires defendants to provide in their moving papers a specific factual scenario establishing a plausible factual foundation for their allegations of misconduct. (City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1150; accord, People v. Collins (2004) 115 Cal.App.4th 137, 151; California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1020.) Recently, in Warrick v. Superior Court (2005) 35 Cal.4th 1011, the court cautioned that the term plausible must not be interpreted as imposing a requirement that the defendants showing be reasonably probable or apparently credible to succeed. (Id. at pp. 1025-1026.) The Supreme Court made clear that a trial court errs if it concludes that defendants factual scenario was implausible, not because his version of events could not have occurred, but because in the courts view that version of events was unlikely. (Id. at p. 1024.) To require a criminal defendant to present a credible or believable factual account of, or a motive for, police misconduct suggests that the trial courts task in assessing a Pitchess motion is to weigh or assess the evidence. It is not. (Id. at p. 1026.) Instead, the defendant presents a plausible scenario when the factual set-up described in the moving papers is one that might or could have occurred and represents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. (Id. at p. 1026.)

In Warrick, the defendant was charged with possession of cocaine for sale based on cocaine discarded near -- and according to the arresting officers by -- him. The Supreme Court held that a Pitchess declaration asserting that the officers mistook defendant for the person who actually discarded the cocaine, and falsely accused him of having done so presented a plausible version of events in that [t]he scenario described . . . is internally consistent; it conflict[ed] with the police report only in denying that defendant possessed any cocaine and that he was the one who discarded the rocks of cocaine found on the ground. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1027.) In addition, it outlined a defense based on the practice of the arresting officers to make false arrests, plant evidence, commit perjury, and falsify police reports or probable cause. (Ibid.)

The factual scenario before the trial court here was not significantly different from that in Warrick. Appellants Pitchess motion included the incident report in which the arresting deputies stated they had observed appellant discard a cigarette pack later found to contain a controlled substance. In a separate declaration, appellants counsel stated appellant denied possessing any controlled substance at any time. The moving papers contended the report had been falsified. There was nothing inherently implausible or internally inconsistent about these contentions. To the extent appellant sought records relating to Deputy McDaniel and Deputy Garcia, any discoverable information could have provided a basis to attack their credibility and to support appellants defense that the drugs found were not his. Appellant was, therefore, entitled to an in camera review by the trial court of the arresting deputies personnel records relating to making false arrests, planting evidence, fabricating incident reports or probable cause, and committing perjury.

Appellant also sought discovery into the records of Sgt. J. Ramirez and other Narco La Puente Team participants. With respect to these peace officers, he did not articulate a valid theory as to how the information sought might be admissible. (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p 86.) Nor can we perceive any reason to require in camera review of the records of peace officers not directly involved in appellants arrest or prosecution. Accordingly, this portion of the request was properly rejected.

B

Procedure After Remand

The proper procedure to follow where a Pitchess motion has been wrongly denied was set forth in People v. Hustead (1999) 74 Cal.App.4th 410. On remand, the trial court must conduct an in camera review of the relevant personnel files. If the review uncovers no discoverable information, the trial court reinstates the original judgment and sentence. If the review reveals discoverable information, the information is given to the defendant, and the defendant is given an opportunity to show prejudice from the denial of discovery. If prejudice is shown, the trial court must order a new trial. Otherwise, the judgment is reinstated and deemed affirmed. (Id. at p. 419; accord, People v. Johnson (2004) 118 Cal.App.4th 292, 304-305.)

On remand here, the trial court is instructed to conduct an in camera review of the personnel records of Deputy McDaniel and Deputy Garcia for any complaints relating to making false arrests, planting evidence, fabricating police reports or probable cause, and committing perjury. The court will determine whether the records contain any discoverable material and, if so, provide such material to appellant. Thereafter, appellant must be given an opportunity to demonstrate how the discoverable material might have led to relevant, admissible evidence and the court can determine whether there is a reasonable probability that had the evidence been admitted a different result would have been obtained at trial. (People v. Hustead, supra, 74 Cal.App.4th at p. 423.) If the court concludes there is a reasonable probability the jury would have reached a different result had it heard the proffered evidence, appellant has established prejudice and the court shall order a new trial. If the trial court finds there are no relevant complaints in the deputies personnel records or concludes that no new evidence would have led to a reasonable probability of a different outcome, the judgment shall be ordered reinstated.

II

Imposition of Upper Term

The trial court imposed the upper term for the Health and Safety Code section 11377, subdivision (a) violation based on appellants criminal record, which the court referred to as his lifetime achievement. Appellant contends the trial court violated the United States Supreme Courts holding in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). The issues raised by appellant are: (1) whether a trial court may rely on the fact of a prior conviction to impose an upper

term sentence; and (2) whether the trial court here relied on an aggravating factor other than the fact of a prior conviction.^[6]

Addressing the first issue, the United States Supreme Court held in both Blakely and its precursor, Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi): Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490; Blakeley, supra, 542 U.S. at p. 301.) In neither Apprendi nor Blakely did the defendant specifically raise the issue whether a sentencing court could constitutionally make findings concerning the existence of prior convictions or concerning recidivism in general to support imposing a term greater than the statutory maximum. However, the court had previously held in Almendarez-Torres v. United States (1998) 523 U.S. 224, that prior convictions used to enhance a sentence do not constitute an element of the charged crime and are not required to be alleged in the indictment. Based on Almendarez-Torres, the court stated in both Apprendi and Blakely that the the fact of a prior conviction was an exception to the rule that facts used to increase a sentence must be submitted to the jury or proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490; Blakely, supra, 542 U.S. at p. 301.)

In Cunningham, the Supreme Court reiterated that the fact of a prior conviction represents an exception to the general rule prohibiting judicial factfinding to increase a defendants sentence. There, the court held that under Californias Determinate Sentencing Law, the relevant statutory maximum for purposes of the Apprendi rule is the middle term because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence. (Cunningham v. California, supra, 127 S.Ct. at

p. 868.) At the same time, the court stated that the Apprendi rule creates an exception for a prior conviction. (Ibid.) Thus, the fact of prior convictions may properly be taken into account in selecting an upper term.

We turn to whether the trial court utilized any other fact in sentencing appellant here. At the sentencing hearing, the trial court referred to appellants lifetime achievement, multiple tours in state prison, and a record going back to 1982. Appellant contends that the trial court did not rely on the fact of a prior conviction in sentencing him to the upper term because the trial court did not refer to the specific facts of appellants prior convictions, but instead based its sentence on the overall nature of appellants history or a general characterization of appellants past. We interpret the language used by the trial court as summarizing appellants prior convictions clearly set out in the probation report, not as an attempt to exceed the bounds of Cunningham, Blakely, or Apprendi. It is clear from the courts statements, taken in context, that the court relied entirely on appellants prior record of convictions in deciding to impose the upper term. The court was not required to point to a specific conviction to justify its decision, and its use of colorful language to describe appellants record did not transform the appropriate use of the prior convictions into error. Under the Supreme Courts holding in Almendarez-Torres, confirmed in Apprendi, Blakely, and Cunningham, the courts reliance on appellants prior convictions to support an upper term sentence did not violate appellants constitutional rights.

DISPOSITION

The judgment is conditionally reversed. The matter is remanded to the trial court to conduct in camera proceedings as set forth in this opinion. If the review of the personnel records reveals discoverable information, the court shall disclose the information to the defense and provide it with an opportunity to develop any evidence. If appellant can demonstrate a reasonable probability that the outcome of the trial would have been different had the discovered evidence been admitted, the court shall order a new trial. If the in camera examination reveals no discoverable information or fails to lead to admissible evidence that the court believes would have established a reasonable probability of a different outcome, the court must reinstate the original judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

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

^[2] The incident report describing appellants arrest was apparently prepared by Deputy McDaniel and signed as approved by Sgt. J. Ramirez. The term Narco La Puente Team is an apparent reference to the team of deputies assigned to the narcotics unit for the City of La Puente, referred to by witnesses at trial as the La Puente Team.

^[3]Miranda v. Arizona (1966) 384 U.S. 436.

^[4] The probation report indicates appellant had a record of more than a dozen convictions, including convictions for burglary in 1988 and 2001, for spousal abuse in 1992, and for robbery in 1996. His remaining convictions were for use or possession of drugs and paraphernalia.

^[5] The prosecution did not oppose the motion.

^[6] Respondent contends appellant forfeited this challenge by failing to pursue it below. Appellant responds that raising an objection at the time of sentencing would have been futile because the trial court was bound by the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238, holding that Californias sentencing scheme did not violate Blakely. According to appellant, the United States Supreme Courts recent opinion in Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. ___ [127 S.Ct. 856], which overruled Black in part, created an opportunity for revival of the debate over Blakelys ultimate meaning and impact. Because we conclude the trial courts decision was not in error, we need not resolve this issue.