P. v. Tarlton

Filed 8/21/06 P. v. Tarlton CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Tony R. Tarlton appeals his conviction for possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)), and possession of less than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b)). He claims the trial court erred by excluding impeachment evidence, instructing the jury with CALJIC No. 2.11.5, and failing to instruct on third party culpability. We reject these claims. Tarlton also claims the trial court abused its discretion in denying a portion of a Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.) We agree and will conditionally reverse and remand the matter to the trial court to conduct an in camera hearing pursuant to Pitchess, and to take other action consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

At midnight, Los Angeles Deputy Sheriffs Adolfo Barajas and Christopher Maurizi stopped a car that was speeding. Tarlton was driving and Joseph Jordan was a passenger. Deputy Barajas asked Tarlton to step out of the car. Before opening the door, Tarlton reached his left hand behind his body. Barajas thought Tarlton might be reaching for a weapon, and demanded that Tarlton show both his hands. Tarlton failed to comply until Barajas repeated his order several times and threatened to shoot Tarlton. At the same time, Deputy Maurizi ordered Jordan to keep his hands in plain view. Maurizi watched Jordan's hands until backup officers arrived, and did not see "anything travel across the space between the two seats going from the passenger towards the driver's seat." Deputy Barajas also did not see any movement towards the driver's seat.

When backup officers arrived, Tarlton got out of the car. Deputy Barajas saw a baggie containing what was later identified as rock cocaine on the driver's seat. Barajas concluded that the cocaine belonged to Tarlton because it was found on the driver's seat, and because Tarlton failed to comply with orders and made a furtive movement.

Tarlton was charged with possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and possession of marijuana. The information alleged that Tarlton had nine prior serious or violent felony convictions within the meaning of the three strikes law and had served four prior prison terms. Prior to trial, however, the prosecution indicated that it would seek a "second strike" sentence if Tarlton were convicted.

A jury found Tarlton guilty of the marijuana charge and the lesser offense of possession of cocaine. In a bifurcated proceeding, the trial court found the prior conviction and prison term allegations true. The court struck all but one of Tarlton's prior strikes (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and sentenced him to seven years in prison. The sentence consisted of the two-year middle term for possession of cocaine, doubled as a second strike, and three one-year enhancements for the prior prison terms. One prior prison term allegation was stricken.

DISCUSSION

Trial Court Erred in Denying Pitchess Motion in Part

Tarlton filed a Pitchess motion for discovery of the personnel records of Deputies Barajas and Maurizi. The motion was granted in part and denied in part. The trial court granted the motion as to complaints of fabricating police reports or lying, but denied the motion as to complaints of planting evidence. After an in camera review, the court found no discoverable documents concerning fabricating reports or lying.

Tarlton contends the trial court erred in denying the portion of the motion regarding planting evidence. Respondent concedes, and urges us to remand so that the trial court can conduct an in camera review to determine whether there are any discoverable documents concerning planting evidence. We agree.

A defendant is entitled to discovery of a police officer's confidential personnel records that contain information relevant to the defense. (Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 537-538; Evid. Code, §§ 1043-1045.) The procedure requires a showing of good cause for the discovery, an in camera review of the records if good cause is shown, and disclosure of information relevant to the subject matter of the case. (Evid. Code, § 1045, subd. (a).) The relatively low threshold for establishing the good cause necessary for an in cameral review is satisfied if the defendant presents a "plausible factual foundation" showing the materiality of the personnel records to the defense. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1026.) A factual scenario does not have to be reasonably probable or credible, only "one that might or could have occurred." (Ibid., italics added.)

Here, Tarlton presented a plausible scenario that Deputies Barajas and Maurizi both fabricated their observations, and planted the drug evidence in the car in order to establish a basis for arresting Tarlton.

Tarlton also requests that this court review the sealed reporter's transcript of the hearing to determine whether the court properly found no discoverable documents regarding fabrication and lying. We have done so and conclude that the trial court did not abuse its discretion in determining that the documents in the officers' files were irrelevant and not subject to disclosure. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Mooc (2001) 26 Cal.4th 1216, 1230-1232.)

No Error in Exclusion of Evidence

Tarlton contends the trial court abused its discretion and violated his constitutional rights by refusing to allow him to impeach Joseph Jordan with evidence that Jordan was on probation for misdemeanor drunk driving at the time of the charged offenses. He argues that Jordan may have been motivated to testify falsely in order to avoid a violation of probation. We disagree.

Conduct underlying a misdemeanor conviction may be admissible to impeach a witness, subject to the court's discretion under Evidence Code section 352. (People v. Wheeler (1992) 4 Cal.4th 284, 292, 295-296.) Because a misdemeanor is a less forceful indicator of character than a felony, courts should "consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (Id., at pp. 296-297, fn. omitted.) The fact that a witness was on probation does not restrict the trial court's discretion under Evidence Code section 352 in the absence of a showing that the witness's probationary status could have affected his testimony. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1050-1051.) We review the trial court's ruling for abuse of discretion. (Wheeler, at p. 296.)

Tarlton's defense was that the drugs found in the car belonged to Joseph Jordan, not Tarlton. In a pretrial motion, Tarlton informed that court that he would call Jordan as a defense witness, and sought a ruling that he could impeach Jordan with evidence that Jordan had a prior felony conviction for possession of drugs for sale, and was on probation for a misdemeanor drunk driving conviction.

The trial court admitted evidence of the drug conviction, but excluded evidence of the drunk driving conviction and Jordan's probationary status, concluding that the slight relevance of the evidence was outweighed by the amount of time that would be consumed by its presentation. The court found the prior drug conviction evidence to be more probative regarding Jordan's credibility than the misdemeanor probation, and stated that Jordan's primary concern was to avoid a new drug felony charge arising out of possession of the drugs found in Tarlton's car.

There was no abuse of discretion in the trial court's ruling. The probative value of Jordan's misdemeanor probation is minimal and, in a drug case, evidence of a prior drug conviction is a more forceful indicator of credibility. Also, as the trial court stated, Jordan was far more likely to testify falsely to avoid incriminating himself in another crime than to avoid a possible violation of probation for a past crime.

We also reject Tarlton's argument that the exclusion of evidence violated his constitutional rights to present a defense and to confront witnesses. A defendant has the right to engage in "otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby 'to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'" (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680, quoting Davis v. Alaska (1974) 415 U.S. 308, 318.) But, the trial court retains wide latitude to restrict testimony that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. (Van Arsdall, supra, at pp. 678-679; People v. Carpenter, supra, 21 Cal.4th at pp. 1050-1051.) A constitutional violation occurs only when the excluded testimony would have produced a significantly different impression of the witnesses' credibility. (Van Arsdall, supra, at p. 680; People v. Frye (1998) 18 Cal.4th 894, 946.) For the reasons previously stated, the proposed evidence would not have produced a significantly different impression of Jordan's credibility in this case.

CALJIC No. 2.11.5 Instruction was Harmless Error

Tarlton contends that the trial court erred in instructing the jury with CALJIC No. 2.11.5 which directs the jury not to speculate about why another person who may have been involved in the crime is not being prosecuted with the defendant.[1] Tarlton argues that the jury was entitled to consider why Jordan was not on trial in evaluating Jordan's credibility as a witness. We agree that the instruction should not have been given, but conclude that there was no prejudicial error.

Contrary to respondent's assertion, failure to object to the instruction in the trial court did not waive Tarlton's claim. Even without objection, a claim of instructional error is preserved on appeal if the instruction involves the defendant's "substantial rights." (People v. Cleveland (2004) 32 Cal.4th 704, 749; Pen. Code, § 1259.) Tarlton claims CALJIC No. 2.11.5 undermined his defense that Jordan committed the offenses. An instruction that deprives a defendant of a legitimate defense affects his or her substantial rights.

A trial court should not give CALJIC No. 2.11.5 when a person who might have been prosecuted for the crime testifies at trial. (People v. Jones (2003) 30 Cal.4th 1084, 1113; People v. Williams (1997) 16 Cal.4th 153, 226.) There is some risk that jurors will interpret CALJIC No. 2.11.5 literally and disregard evidence of credibility such as a favorable plea agreement, a grant of immunity, and prior felony convictions. (Jones, at p. 1113; see also People v. Fonseca (2003) 105 Cal.App.4th 543, 548-549.)

We do not presume, however, that jurors will apply the instruction so rigidly. We consider the instructions as a whole to determine if the entire charge correctly stated the law. (People v. Cox (1991) 53 Cal.3d 618, 667.) Instructing the jury with CALJIC No. 2.11.5 is not considered error when it is given with other instructions regarding witness credibility and burden of proof. (See People v. Jones, supra, 30 Cal.4th at p. 1114.)

In this case, the jury was instructed that in determining the believability of a witness, jurors could "consider anything that has a tendency reasonably to prove or disprove the truthfulness . . . of the witness," including "[t]he existence or nonexistence of a bias, interest, or other motive" (CALJIC No. 2.20). And, the jury was instructed that it could consider evidence of a prior felony conviction "for the purpose of determining the believability of that witness" (CALJIC No. 2.23), and that a conviction required proof beyond a reasonable doubt (CALJIC No. 2.90). Moreover, CALJIC No. 2.11.5 instructed the jury not to speculate over the reasons Jordan was not being prosecuted, but did not tell the jury to ignore the lack of prosecution in determining his credibility, or not to consider evidence that someone other than Tarlton committed the crimes. (See People v. Farmer (1989) 47 Cal.3d 888, 918-919, overruled on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) No reasonable juror would have understood CALJIC No. 2.11.5 to preclude consideration of evidence and argument that Jordan, not Tarlton, was the guilty party.

No Duty to Instruct on Third Party Culpability

Tarlton also contends that the trial court violated his due process right to a fair trial by failing to instruct the jury regarding third party culpability. He argues that the jury should have been instructed that the defendant had presented evidence to show that a third party committed the offenses, and that such evidence could raise a reasonable doubt as to the defendant's guilt.

Because Tarlton failed to request the instruction in the trial court, his claim has been waived. The trial court has a duty to instruct on general principles of law that are necessary for the jury's understanding of the case, including defenses supported by substantial evidence. (E.g., People v. Montoya (1994) 7 Cal.4th 1027, 1047.) But, unless requested by the defendant, a trial court has no duty to give pinpoint instructions on specific points or special theories which might be applicable to a particular case. (People v. Henderson (2003) 110 Cal.App.4th 737, 741-742.) An instruction on third party culpability is a pinpoint instruction. (People v. Earp (1999) 20 Cal.4th 826, 886-887; Henderson, at pp 741-742.) Accordingly, even when there is evidence of third party culpability, there is no duty to instruct, sua sponte, on the use of such evidence in determining whether a reasonable doubt exists as to defendant's guilt.

We consider and reject the contention on the merits because Tarlton claims failure to request the instruction shows ineffective assistance of counsel.

The standard instruction on reasonable doubt (CALJIC No. 2.90) is sufficient where the defense theory is that a third person committed the crime and additional instructions on third party guilt may be rejected as repetitious. (People v. Earp, supra, 20 Cal.4th at p. 887; People v. Wright (1988) 45 Cal.3d 1126, 1134.) While the reasonable doubt instructions given here did not explicitly refer to the defense of third party culpability, we presume the jurors understood all the instructions given to them. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

Therefore, any error in failing to give a third party culpability instruction was harmless. It is not reasonably probable the jury would have reached a different conclusion if the instruction had been given. (People v. Earp, supra, 20 Cal.4th at p. 887.) Here, the jury was well aware of Tarlton's position that Jordan committed the offenses. Had the jury harbored a reasonable doubt as to whether Tarlton was guilty, it would have followed the reasonable doubt instruction and acquitted him.

DISPOSITION

The judgment is conditionally reversed and the case remanded with directions to the trial court to conduct an in camera hearing on Tarlton's discovery motion regarding the planting of evidence. If the hearing reveals no discoverable information, or if there is discoverable information and appellant cannot establish he was prejudiced by the denial of discovery, the trial court shall reinstate the original judgment and sentence which shall stand affirmed. (People v. Hustead (1999) 74 Cal.App.4th 410, 423.) If appellant can establish he was prejudiced by the denial of discovery, the trial court shall order a new trial.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Mark S. Arnold, Judge

Superior Court County of Los Angeles

______________________________

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Joseph P. Lee, Deputy Attorney General, for Plaintiff and Respondent.

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[1] CALJIC No. 2.11.5 provides: "There has been evidence in this case indicating that a person other than a defendant was or may have been involved in the crime for which that defendant is on trial. [¶] There may be many reasons why that person is not here on trial. Therefore, do not speculate or guess as to why the other person is not being prosecuted in this trial or whether [he or she] has been or will be prosecuted. Your sole duty is to decide whether the People have proved the guilt of the defendant on trial."