P. v. Mizrahi

Filed 8/29/07 P. v. Mizrahi CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Richard H. Kirschner, Judge. Affirmed.

Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

In an information filed by the Los Angeles District Attorney on April 18, 2006, appellant Samuel Mizrahi was charged with one count of possession of a controlled substance (Count I, Health & Saf. Code, 11350, subd. (a)); one count of battery with injury on a peace officer (Count II, Pen. Code, 243, subd. (c)(2);[1]and three counts of resisting arrest (Counts III, IV, and V, 148, subd. (a)(1)). Appellant pled not guilty as to all counts. Prior to trial, appellant filed a Pitchess[2]motion for discovery of peace officer records, which was granted by the trial court on June 8, 2006. On that date, the trial court reviewed personnel records in camera and found discoverable material.

At the conclusion of the Peoples case, the trial court granted appellants motion to dismiss Count III for insufficient evidence, under section 1118.1. The trial court denied the motion as to the other counts.

The jury found appellant guilty of possession of a controlled substance (Count I) and two counts of resisting arrest (Counts IV and V). The jury found appellant not guilty of battery with injury on a peace officer (Count III). The trial court suspended sentencing on all counts and granted appellant three years of formal probation.[3] He was also ordered to pay a $20 court security assessment fine ( 1465.8, subd. (a)(1)), $500 in attorney fees ( 987.8), and a $200 restitution fine ( 1202.4, subd. (b)). The trial court also imposed and stayed a $200 probation revocation fine ( 1202.44).

Appellant timely filed a notice of appeal. Specifically, he asks us to make an independent review of the sealed transcript of the trial courts in camera hearing on his Pitchess motion to determine whether any discoverable material was improperly withheld from him. That information includes any relevant complaints, whether sustained or otherwise, against the four peace officers involved in appellants arrest.

FACTUAL AND PROCEDURAL BACKGROUND

A. Peoples Case

On January 30, 2006, Detective Benjamin Herskowitz (Herskowitz) observed a person he believed to be appellant purchasing illegal narcotics. When Herskowitz approached appellant and identified himself, appellant ran away. Herskowitz gave chase. When he reached appellant, appellant resisted arrest and an altercation ensued. Herskowitz called for backup, and ultimately, it took three additional officers, Detective Kathleen Burns (Burns), Officer David Hayden (Hayden), and Officer Noreen Herbert (Herbert), to take appellant into custody.

B. Defense Case

Appellant denied purchasing narcotics and resisting arrest. He testified that he was attacked from behind and severely beaten. He also testified that the attackers did not identify themselves as police officers.

C. Appellants Pitchess Motion

Prior to trial, appellant filed a Pitchess motion, requesting the disclosure of all four arresting police officers personnel records. The trial court granted the motion and reviewed the personnel records in camera. After the in camera review, the trial court indicted that there were no disclosures with respect to Herbert or Burns, there was one disclosure with respect to Herskowitz, and there were two disclosures with respect to Hayden. The trial court ordered the release of the names, telephone numbers, and addresses of the complainants and any witnesses with respect to the complaints involving Herskowitz and Hayden.

DISCUSSION

Trial courts are granted wide discretion when ruling on motions to discover police officer personnel records. (People v. Mooc (2001) 26 Cal.4th 1216, 1217.) When requested to do so by an appellant, an appellate court may independently review the transcript of the trial courts in camera Pitchess hearing to determine whether the trial court disclosed all relevant complaints. (People v. Mooc, supra, at p. 1229.)

Pursuant to appellants request,[4]we have reviewed the sealed transcript of the trial courts Pitchess hearing. We conclude that there is nothing in the materials that would lead us to find an abuse of discretion by the trial court. (People v. Mooc, supra, 26 Cal.4th at p. 1228.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

_____________________, P. J.

BOREN

_____________________, J.

DOI TODD

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[1] On the Peoples motion, Count II was amended on September 1, 2006, to allege the battery under Penal Code section 243, subdivision (b), rather than under subdivision (c)(2). An amended information was not filed.

All further statutory references are to the Penal Code unless otherwise indicated.

[2]Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537-538 (Pitchess).

[3] As a condition of probation, appellant was ordered to serve a 180-day county jail term, amounting to time already served. Appellant was given credit for the 120 days actually served and 60 days for good time/work time.

[4] The People did not object to our independent review of the transcript of the trial courts in camera Pitchess hearing.