Filed 9/28/17 P. v. Schabeck CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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On March 24, 2016, a jury found defendant Cindy Lee Schabeck guilty of two misdemeanor gun charges (based on her carrying a concealed and loaded firearm in her car) and acquitted her of multiple felony charges related to drug possession. On April 8, 2016, the trial court (Savage, J.) placed defendant on three years of probation. On appeal, defendant contends the trial court erred in denying her Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.)

We requested and received supplemental briefing on the issue of whether defense counsel rendered ineffective assistance by failing to request the jury be instructed on a defense that appears supported by the record. We conclude that the record in its current state is insufficient to conclude there was no tactical reason for counsel’s failure. Accordingly, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution’s Case

On May 25, 2013, police officers Darryl Olesen and Austin Azevedo were patrolling a high crime area known for narcotics and stolen property. Both officers saw defendant park her car in an apartment complex. Defendant and multiple passengers exited the vehicle, entered the apartment complex, and quickly returned to the car. Defendant drove the car away from the apartment complex, and the officers followed. Olesen noticed defendant’s windshield was cracked and initiated a traffic stop. He activated his lights and siren, but defendant continued driving for a quarter mile until she pulled over. When Olesen approached to talk with her, he noticed multiple passengers and an overwhelming smell of perfume, which he testified often signals the attempt has been made to mask the smell of drugs.

According to Olesen, defendant denied having any drugs or weapons in the car. Although she provided him with her license, he was suspicious and asked her to get out of the car. Olesen asked her if there was any marijuana in the car, and he testified that she responded “no.”

Another officer, Kane Kissam, obtained a half burnt marijuana cigarette from one of the passengers. Defendant again denied there were any drugs in the car and refused to consent to a vehicle search. Based on finding the marijuana, the officers searched the car without her consent. They found drugs, a digital scale, and a pink case containing ammunition and a “speed loader” (a cylinder that can be preloaded with five rounds of ammunition to speed up the loading process).

Based on the discovery of the ammunition and loader, Olesen asked defendant where the gun was. She responded that it was in her purse, which was in the back of the car. Olesen retrieved the purse and found a loaded .38-caliber pistol inside. The gun was capable of being concealed, and was operational. Olesen testified that defendant told him she had been to a gun range earlier that day and had “fired some rounds.” Police records identified defendant as the gun’s registered owner.[1]

Charges

Defendant was charged with possession of methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a); count one), possession of methamphetamine (id., § 11377, subd. (a); count two), possession of concentrated cannabis (id., § 11357, subd. (a); count three), possession of testosterone (id., § 11377, subd. (b)(1); count four), possession of more than 28.5 grams of marijuana (former § 11357, subd. (c); count five), carrying a concealed firearm in her vehicle (Pen. Code, § 25400, subd. (a)(1); count six),[2] and carrying a loaded firearm in her vehicle while in a public place (id., § 25850, subd. (a); count seven).

Defendant’s Case

At trial, defendant testified she told Olesen about her gun and marijuana the first time he asked her. She also testified she told the police her gun was in a locked case in the back cargo area, which was the last place she saw the gun. Defendant testified she was not carrying the gun in her purse. She said she had the gun in her car because her apartment had been broken into multiple times and she feared the gun would be stolen while she was gone. During cross examination, defendant identified her gun case for the jury and testified, “[t]hat’s where my gun was.” When the prosecutor asked defendant whether the gun was in her purse, she testified, “I don’t know.” The prosecutor asked, “You are saying you thought your gun was in your gun case, is that right?” Defendant responded, “That’s the last time I saw my gun is when I put my gun in my case.”

In addition, defendant testified her gun was not loaded when she put it into the locked case, and, “[n]obody is supposed to” drive around in a vehicle with a loaded firearm. Defendant also testified she did not know people in her car were smoking marijuana, although she did not deny the police found marijuana cigarette butts in the car’s ashtray. She denied the car smelled strongly of perfume when the police stopped her. She testified her relationship with the passengers was “fairly new,” and she had only met the two male passengers a few days before the incident.

During closing argument, defense counsel argued the passengers were “doing sketchy things,” and had ample opportunity to reach back and “slide a couple things in” defendant’s purse in the back cargo area, including while defendant was driving and during the police search of the vehicle. Defense counsel also suggested one of the passengers may have removed the gun from the case when he got out of the vehicle at the apartment.

Verdicts

The jury found defendant guilty of counts six and seven, the misdemeanor gun charges. It acquitted her of all drug charges.

Suppression and Pitchess Motions

More than two years before trial commenced, defendant moved to suppress the evidence seized from her car; that motion was denied (Orr, J.) after an evidentiary hearing in April 2014.

In August 2015, defendant moved pursuant to Pitchess to discover police personnel records and citizen complaints regarding falsification of evidence or testimony for officers Olesen and Azevedo. Her counsel included an affidavit with the motion, as required, with the paragraph containing key information (presumably describing why the officers’ personnel records could conceivably be relevant) redacted. Initially, defense counsel sought to seal the redacted paragraph, asserting it contained privileged information. (See Garcia v. Superior Court (2007) 42 Cal.4th 63.)

In September 2015, the court (Sweet, J.) held an in camera hearing between defense counsel and the court. At the conclusion of the hearing, counsel requested the court return the submitted declaration, withdrawing it from consideration, and indicated she would file an amended declaration. In October 2015, counsel filed an (unredacted) amended declaration, suggesting defendant expected to show that the two officers conducted an unlawful search and seizure, and were untruthful about the incident. She did not request sealing of any portion thereof.

The amended declaration stated in pertinent part: “After determining the presence of marijuana in the vehicle, Olesen asked [defendant] repeatedly for consent to search the vehicle. [Defendant] refused consent to search. Olesen then told [defendant] that he was going to search the car. Several items of contraband were found inside the car. [Defendant] denies that the items were found in the locations listed in the police report. [Defendant] denies making any statements to the officers about going to a shooting range. [Defendant] denies ever giving consent to search the vehicle.”

Attached to the declaration were the reports from Olesen, Azevedo, and Kissam. Olesen’s report described that, after the marijuana cigarette was found, he confronted defendant and again asked if he could search the vehicle. Defendant said no. Olesen then advised he believed there was more illegally possessed marijuana in her vehicle and he would search it. Defendant “did not refuse the search.”

In October 2015, the trial court (Oros, J.) denied defendant’s Pitchess motion seeking in-chambers review of the officers’ records, finding defendant failed to show good cause for review. The court observed that it was already clear that defendant “at no time gave consent for the search of her vehicle.” The officers’ search was based on discovering the marijuana cigarette inside the vehicle, and in her affidavit supporting her Pitchess motion she acknowledged the officers did not search the vehicle until after they found the marijuana. Moreover, the police report stated defendant did not consent to the search.[3] In addition, while defendant argued the contraband was not located where the police said it was, she did not deny the police found the items. Accordingly, the trial court found defendant failed to “show[] an alternate factual scenario that provides a logical link between the pending charge and the proposed defense along with an articulation of how the request of discovery would support the proposed defense.”

DISCUSSION

I

Pitchess Motion

Defendant contends the trial court erred in finding she had not established good cause for an in camera review of the officers’ personnel record for citizen complaints of providing false evidence or testimony. We review the trial court’s denial of discovery of information from police personnel files for abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992.)

A party seeking disclosure of a police officer’s personnel records must show “good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation.” (Evid. Code, § 1043, subd. (b)(3).) The threshold for establishing good cause to hold a Pitchess hearing is “relatively low.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83, 84.)

To show good cause, defense counsel’s supporting declaration “must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses. These requirements ensure that only information ‘potentially relevant’ to the defense need be brought by the custodian of the officer’s records to the court for its examination in chambers. [Citations.]” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024.) The defense need only describe a “plausible factual foundation” for the claim of “specific police misconduct that is both internally consistent and supports the defense proposed to the charges.” (Id. at pp. 1025-1026.) A scenario sufficient to establish a plausible factual foundation “is one that might or could have occurred.” (Id. at p. 1026.)

Here, the trial court did not abuse its discretion in determining that defendant (via her counsel’s October 2015 declaration) failed to meet the “relatively low” threshold for establishing good cause.[4] First and foremost, the issue of consent to the search was not relevant, as the suppression motion had already been heard and defendant did not articulate how her consent or lack of it was even marginally relevant to her defense at trial. Further, as the trial court observed when it denied the Pitchess motion, the officers had never asserted defendant consented to the search.

Beyond consent, the relevant paragraph contained only two claims: it denied that unspecified contraband was “found in the locations listed in the police report,” and denied that defendant told the officers “about going to a shooting range.” But defendant failed to explain, even generally, how the location of the contraband within the car was relevant to her defense to the charges. She also failed to identify which items she was referring to, where the items were located, and why their specific location within the car mattered to her defense. She did not explain the relevance of the shooting range comment, and it was not material whether defendant knew the gun was loaded because there is no such requirement under section 25850. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1514, fn. 3 [analyzing former § 12031, subd. (a), the predecessor to § 25850]; People v. Dillard (1984) 154 Cal.App.3d 261, 263.)

We find no abuse of discretion.

II

Ineffective Assistance of Counsel

Section 25610 sets forth an exception to section 25400 and permits an individual who is not prohibited from possessing, receiving, owning, or purchasing a firearm to transport a firearm capable of being concealed, provided in relevant part that “(1) The firearm is within a motor vehicle and it is locked in the vehicle’s trunk or in a locked container in the vehicle.” (§ 25610, subds. (a)(1).)

Given defendant’s testimony that she placed her gun in a locked container in the vehicle, defendant contends her counsel was ineffective because she failed to request that the jury be instructed that it was legal for defendant to transport a firearm as specified by section 25610. The People argue it was not plausible that a passenger took defendant’s gun out of the locked case and hid it in defendant’s purse. As such, defense counsel “made the best of it,” and tried to blame the passengers for all the contraband, including the gun in defendant’s purse. Because this was a tactical call and not unreasonable, they argue counsel was not ineffective, although they do not dispute that section 25610 provides a complete defense to one of defendant’s two counts of conviction.

To establish ineffective assistance of counsel, a defendant must show counsel’s performance was “deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) A defendant must also show “resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” (Ibid.) On review, the “court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance.” (Ibid.) Reversal is appropriate only if: “1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.” (Ibid., see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) All other ineffective assistance of counsel claims, “are more appropriately resolved in a habeas corpus proceeding.” (Mai, at p. 1009; see also Mendoza Tello, at p. 267.)

Here, we do not know why counsel failed to request a jury instruction regarding section 25610. The People suggest that such an instruction could have made defendant’s entire defense that the passengers were responsible for the contraband seem less believable. The instruction could have reemphasized that the gun case needed to be locked, and the jury could have reasonably concluded it was unlikely defendant gave the passengers the combination or key, especially since she had only just recently met them. If the jury doubted defendant’s story that the passengers were responsible for placing the gun in defendant’s purse, a jury could then reasonably doubt defendant’s story that the passengers were responsible for the drugs, too. Thus, counsel could rationally conclude that the risks of the instruction potentially defending against a misdemeanor gun charge outweighed the benefits of focusing on the more serious drug charges, on which counsel achieved acquittal.

On this record, we cannot definitively say that there was no rational tactical purpose for counsel’s failure to request an instruction that, if the jury believed her client, would have resulted in her acquittal on one of the two counts of conviction. Thus the issue of counsel’s effectiveness here is more appropriately decided in a habeas corpus proceeding. (See People v. Mendoza Tello, supra, 15 Cal.4th at p. 267; People v. Pope (1979) 23 Cal.3d 412, 426, fn. 17.)

DISPOSITION

The judgment is affirmed.

/s/

Duarte, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Mauro, J.