P. v. Lochtefeld

Filed 9/13/06 P. v. Lochtefeld CA4/1

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Robert J. Trentacosta, Judge. Affirmed.

I.

INTRODUCTION

In June 2003, Eric Lochtefeld pled guilty to possessing a firearm as a felon (Pen. Code, § 12021, subd. (a)(1)). In September 2003, the trial court placed Lochtefeld on probation, subject to various conditions, including that he remain law abiding and neither use nor possess a controlled substance. In March 2004, Lochtefeld provided the probation department with a urine sample that tested positive for cocaine. In December 2004, police arrested Lochtefeld after finding rock cocaine in his car. In January 2005, the People filed a petition to revoke Lochtefeld's probation, alleging that he had violated the aforementioned probation conditions. In February 2005, after a contested hearing, the trial court found that Lochtefeld had failed to remain law abiding and that he had used cocaine. In April 2005, the trial court formally revoked probation and sentenced Lochtefeld to two years in prison.

On appeal, Lochtefeld claims the trial court erred in admitting the results of drug tests conducted on his March 2004 urine sample because the People failed to provide him with a portion of the sample for independent testing. Lochtefeld also claims the trial court erred by excluding from evidence a hearsay statement purportedly made by a woman named Natalie Adams in which she stated that the rock cocaine found in Lochtefeld's car belonged to her. Finally, Lochtefeld requests that this court review the trial court's denial of a motion he brought pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We affirm the order.

II.

FACTUAL BACKGROUND

A. Lochtefeld's use of cocaine

On March 23, 2004, Lochtefeld provided the San Diego County Probation Department (probation department) with a urine sample for drug testing. The sample was tested on March 24, 2004, and again on February 15, 2005. Both test results indicated the presence of cocaine.

B. Lochtefeld's failure to remain law abiding

On December 13, 2004, at approximately 1:59 a.m., San Diego Harbor Police Officer Michael Proffitt observed Lochtefeld in a parked car in South Marina Park. Officer Proffitt approached Lochtefeld's car because the park had closed at 10:30 p.m. After determining that Lochtefeld was on probation, Officer Proffitt asked Lochtefeld for consent to search him. Lochtefeld agreed to be searched. Under the front passenger seat of Lochtefeld's car, Officer Proffitt found a cigarette box that contained rock cocaine and copper mesh. Officer Proffitt testified that copper mesh is commonly used as a filter for smoking rock cocaine. Officer Proffitt arrested Lochtefeld and transported him to the police station. While Officer Proffitt was searching Lochtefeld at the police station, a glass pipe and a lighter fell from Lochtefeld's waistband onto the floor.

C. The defense

Lochtefeld testified in his own behalf. He stated that he had borrowed the car he was driving on the morning of December 13, 2004, since his truck was being repaired. He denied that the rock cocaine that Officer Proffitt found in the car belonged to him. Lochtefeld testified that a lighter fell from his waistband onto the ground while Officer Proffitt searched him at the police station. However, Lochtefeld claimed he did not possess a glass pipe and that the pipe was already on the ground before he was searched.

III.

DISCUSSION

A. This court need not decide whether the trial court erred in admitting the

results of Lochtefeld's drug tests because any error was harmless

Lochtefeld claims the trial court erred in admitting the results of drug tests conducted on his March 2004 urine sample, in light of the People's failure to provide him with a portion of the urine sample for independent testing.

1. Procedural history

In January 2005, the People filed a petition to revoke probation in which they alleged that Lochtefeld violated four conditions of his probation:

"a) Condition 6c: On December 13, 2004, it is alleged the defendant committed the following offense(s): Health and Safety Code section 11350 and Health and Safety Code section 11364.^[[1]]

"b) Condition 6i: The defendant failed to report change of address to Probation Officer.

"c) Condition 6h: The defendant failed to report to a Probation Officer as directed.

"d) Condition 7d: Not use or possess a controlled substance without a valid prescription, in that on December 13, 2004, the defendant was arrested for violating Health and Safety Code section 11350. Also the defendant tested positive for marijuana on October 13, 2003; and for cocaine on March 23, 2004. Further the defendant failed to appear for drug testing on February 19, 2004; and March 19, 2004."

In early February 2005, prior to the probation revocation hearing, defense counsel spoke with the prosecutor and requested that Lochtefeld's March 2004 urine sample be retested. The prosecutor informed defense counsel that the laboratory that performs drug testing on behalf of the probation department would conduct a retest of the sample, but that the laboratory would not release a portion of the sample to defense counsel for independent testing. The prosecutor informed defense counsel that counsel could either attend the retest, or send an expert to witness the retesting.

On the morning of the probation revocation hearing, Lochtefeld filed a trial brief. In his trial brief, Lochtefeld requested that the court exclude the results of drug tests conducted on his March 2004 urine sample on the ground that he had not been provided with a portion of the sample. At the hearing, prior to the taking of evidence, the prosecutor indicated that she had just received the results of the retest and that she would share the results with defense counsel. The prosecutor implied that she intended to offer the results of the retest in evidence at the hearing. Defense counsel reiterated his claim that the drug tests should be excluded from evidence on the ground that he was not provided with a portion of the sample for independent testing. Defense counsel argued that the People's offer to allow the defense to witness the retest was unreasonable in light of the fact that the laboratory that the probation department uses is located in Flagstaff, Arizona.

The trial court asked the prosecutor whether any of the sample was available for further possible testing. The prosecutor responded that she did not know whether any of the sample still existed, but that one of the People's witnesses, Lisa Donohoo, a manager with the probation department, might have further information regarding this issue. The court ruled that it would allow the People to present the drug test results and that the court would "inquire of whoever would be most knowledgeable as to whether or not there is any portion of the sample that is sufficient for a yet further retesting by the defendant."

Donohoo testified that Lochtefeld provided the probation department with a urine sample for drug testing on March 23, 2004, and that the sample was tested on March 24, 2004, and again on February 15, 2005. Both test results indicated the presence of cocaine. The People offered in evidence the laboratory report that contained the test results. Defense counsel objected on the grounds that he had not been provided with a portion of the sample for testing, and that he had not received the results of the retest until the day of the probation revocation hearing. The court overruled the objection and admitted the laboratory reports in evidence.

At the conclusion of the hearing, the trial court ruled in relevant part:

"[A]s to the charge of the defendant's failure to remain law-abiding, I do find a violation. I have listened carefully to the defendant's testimony and the testimony of Officer Proffitt. I find the defendant's version of the facts in this case, to put it mildly, not convincing. . . . In this case the evidence is more than clear that the defendant has failed to remain law-abiding by violation of Health and Safety Code section 11364, possession of drug paraphernalia, i.e. the glass pipe, as well as possession of rock cocaine.

"In this case I needn't address the issue of the defendant failing to report to the probation officer as directed; however in this case I will give the defendant the benefit of the doubt with respect to not reporting at 9:00 as directed by probation. However, the defendant did test positive for cocaine, and that, as a separate and independent grounds, would be also a basis for revocation.

"In this case it is simply redundant as I do find that there has been sufficient evidence of the defendant's failure to remain law-abiding. I will now formally revoke probation in this case."

2. Any error committed by the trial court in admitting the drug test results

was harmless

In this case, we need not decide whether the People were required to provide the defense with a portion of the March 2004 urine sample for independent drug testing, or whether any such failure required the trial court to exclude drug test results relating to those samples, because the record is clear that the court revoked Lochtefeld's probation on an alternative ground--his failure to remain law abiding.

In its ruling, the trial court clearly and unequivocally stated that it was revoking Lochtefeld's probation due to his failure to remain law abiding.^[2] The violation for failing to remain law abiding stemmed from evidence of Lochtefeld's possession of drugs and drug paraphernalia in December 2004, which was unrelated to the March 2004 urine sample. The trial court's statements that the drug test results constituted "separate and independent grounds" for revoking probation and that they were "redundant" make it clear that the court would have revoked probation with or without the drug test results. Therefore, we reject Lochtefeld's argument that the trial court's purported error in failing to exclude the evidence of the drug tests prejudiced him because the court "never really found appellant in violation of any other condition of probation."

We conclude that we need not decide whether the trial court erred in admitting the results of Lochtefeld's drug tests, because any such error was clearly harmless.

B. The trial court did not abuse its discretion in excluding Natalie Adams's

hearsay statement

Lochtefeld claims the trial court erred in excluding Natalie Adams's hearsay statement against penal interest, to the effect that the rock cocaine found in Lochtefeld's car belonged to her. We review the trial court's ruling for an abuse of discretion. (People v. Cudjo (1993) 6 Cal.4th 585, 607 (Cudjo).)

1. Factual and procedural background

On the morning of the probation hearing, defense counsel stated that he intended to offer in evidence a declaration by a woman named Natalie Adams stating that the rock cocaine found in Lochtefeld's car belonged to her.^[3] Defense counsel said that Adams had come to his office to make the declaration and that she had signed it in the presence of his secretary. He argued that Adams's declaration was admissible as a statement against penal interest. Defense counsel further stated that Adams did not have an address and that he had heard that she was on her way to Yuma, Arizona. Defense counsel acknowledged that the People had not had a prior opportunity to cross-examine Adams.

The People objected to admission of the declaration on the ground that it lacked sufficient indicia of trustworthiness. The prosecutor noted that the declaration was not notarized. Further, the prosecutor stated that she had not been provided with Adams's

date of birth, address, phone number, or any other contact information. The prosecutor stated that due to the lack of personal identifying information about Adams, she did not know whether or not Adams had a prior criminal record, which would be relevant for impeachment purposes. The prosecutor summarized her argument by stating, "For all we know, [the declarant's] name is Jane Doe."

The court ruled that the declaration was not admissible:

"[W]ith respect to the declaration of Natalie Adams, there's been a wholly insufficient showing for me just to accept the declaration at face value. There is no underlying information that would give me the necessary faith in the truthfulness of the allegation. This is not someone present here in court, not someone ─ it is essentially a quote/unquote declaration without the prosecution having an opportunity to cross-examine this person. As such, it is not an appropriate statement against penal interest. That declaration will not be received."

2. Governing law

Evidence Code section 1200 provides:

"(a) 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.

"(b) Except as provided by law, hearsay evidence is inadmissible.

"(c) This section shall be known and may be cited as the hearsay rule."

Evidence Code section 1230 provides in relevant part:

"Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made . . . so far subjected him to the risk of civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true."

The logic underlying the exception to the hearsay rule codified in Evidence Code section 1230 is that "rational people are unlikely to make false statements against their own penal interests." (People v. Campa (1984) 36 Cal.3d 870, 882.) In Cudjo, the California Supreme court outlined the manner by which a trial court is to determine the admissibility of a statement offered pursuant to this exception:

"A party who maintains that an out-of-court statement is admissible under this exception as a declaration against penal interest must show that the declarant is unavailable, that the declaration was against the declarant's penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.] To determine whether the declaration passes the required threshold of trustworthiness, a trial court 'may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.' [Citation.]" (Cudjo, supra, 6 Cal.4th at p. 607.)

"[I]n this context, assessing trustworthiness ' "requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception." ' [Citation.]" (People v. Duarte (2000) 24 Cal.4th 603, 614.) "Courts applying [Evidence Code] section 1230 to determine the basic trustworthiness of a proffered declaration are . . . to 'consider all the surrounding circumstances to determine if a reasonable person in [the declarant's] position would have made the statements if they weren't true.' [Citation.]" (Id. at p. 618.)

3. The trial court did not abuse its discretion in determining that Adams's

declaration lacked sufficient indicia of trustworthiness to be admissible

Lochtefeld provided so little identifying information regarding Adams that the proffered statement was, in essence, an anonymous declaration. Apparently recognizing as much, Lochtefeld argues in his reply brief that the defense was not required "to prove that Natalie Adams existed." However, given that it was the defense's burden to establish the trustworthiness of the declaration, it necessarily follows that the defense was required to demonstrate that the declarant was in fact a real person. Further, even assuming the court found that Adams existed, the lack of any personal identifying information meant that Adams could make the statement free from any concern that she might suffer consequences for claiming ownership of the contraband. This undermines the rationale for the admissibility of the proffered statement as a statement against penal interest. Therefore, in considering all of the circumstances surrounding Adams's statement, the trial court could have reasonably determined that the statement lacked sufficient indicia of trustworthiness. (Accord People v. Lawley (2002) 27 Cal.4th 102, 154 [concluding testimony regarding unauthenticated letter directing a murder allegedly prepared by an unidentified writer on behalf of prison gang was not sufficiently reliable to be admitted as statement against interest].)

Finally, we reject Lochtefeld's argument that the trial court did not exclude Adams's declaration on the ground that it lacked trustworthiness. Lochtefeld argues that the court excluded the declaration merely because it constituted hearsay, without considering the exception for statements against interest. The prosecutor objected to the introduction of the declaration on the ground that it lacked trustworthiness and the court's ruling is clear that it excluded the declaration on this basis.

We conclude that the trial court did not abuse its discretion in excluding Adams's declaration.

C. The trial court did not abuse its discretion in denying Lochtefeld discovery

of Officer Proffitt's personnel records

Lochtefeld requests that this court review the trial court's denial of his Pitchess motion.

In the trial court, Lochtefeld filed a Pitchess motion in which he sought discovery of Officer Proffitt's personnel records. In his motion, Lochtefeld claimed that Officer Proffitt had lied in stating that Lochtefeld had a pipe in his shirt on the night in question. Lochtefeld argued that information contained in Officer Proffitt's personnel records might be discoverable because the records might "show a pattern, habit, or custom of false statements to justify arrests." Officer Proffitt's employer, San Diego Unified Port District, filed an opposition to the motion.

The trial court conducted a hearing on the motion. During the hearing, the court concluded that Lochtefeld had established good cause for discovery of the personnel records, thereby warranting an in camera review of the records to determine if any of the records were responsive to Lochtefeld's motion. (See Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 ["If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance"].) After reviewing Officer Proffitt's personnel records in camera, the court ruled that there were no records in the file that were responsive to Lochtefeld's motion.

On appeal, this court is required to examine the materials in camera and determine whether the trial court abused its discretion in refusing to disclose the contents of the officer's personnel files. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Mooc (2001) 26 Cal.4th 1216, 1229.) We have examined Officer Proffitt's personnel records in camera and conclude that the trial court did not abuse its discretion in denying discovery of the records.

IV.

DISPOSITION

The order revoking probation is affirmed.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

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^[1] Health and Safety Code section 11350 prohibits the possession of various controlled substances. Health and Safety Code section 11364 prohibits the possession of certain types of drug paraphernalia.

^[2] We reject Lochtefeld's claims with respect to his failure to remain law abiding in parts III.B. and III.C., post.

^[3] The declaration is not included in the record.