P. v. Barillas

Filed 4/13/06 P. v. Barillas CA2/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Schuit and Burt Pines, Judges. Reversed and remanded with directions.

Kevin D. Sheehy, 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, Assistant Attorney General, Mary Sanchez and Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Evelyn Celeste Barillas appeals from the judgment entered following her conviction by jury of selling or offering to sell cocaine base (Health & Saf. Code, § 11352, subd. (a)). The court suspended imposition of sentence and placed her on formal probation for three years.

In this case, in which appellant made a Pitchess motion to discover information in the personnel files of two police officers, we hold the trial court, Judge Robert J. Schuit presiding, erred by only partially granting the motion as to one officer's file to permit discovery only of any evidence of false reports and not any other evidence of dishonesty (as that term is described post), and erred by denying the motion as to another officer's file, precluding discovery from that file of any evidence of dishonesty. Appellant made a good cause showing that information, that is, any evidence of dishonesty, sought from the personnel file of each officer was material to the subject matter of the litigation. The motion presented not only a specific factual scenario of alleged police misconduct, but a scenario that established a plausible factual foundation, that is, a scenario that might have occurred. This is true since the motion not only denied allegations in a police report that appellant committed the above offense, but presented detailed evidence of what allegedly did occur, supporting a defense that appellant did not commit the present offense and police allegations to the contrary were fabricated.

However, we conclude the motion was overbroad to the extent it requested information other than evidence of dishonesty from each officer's personnel files. Accordingly, although we express no opinion as to whether appellant's allegations of police misconduct are credible or true, they suffice as a good cause showing on the issue of materiality.

Nonetheless, as to remedy, we conclude no prejudice resulted from the trial court's error with respect to appellant's request for Pitchess discovery from Curry's file. The sealed transcript of the in camera proceedings the court conducted as to that file clearly demonstrates no prejudice resulted from the above mentioned trial court error. We conclude the trial court's error with respect to appellant's request for Pitchess discovery from Rubalcava's file was prejudicial. Accordingly, we will reverse the judgment and remand the matter with appropriate directions.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on January 22, 2004, undercover Los Angeles Police Officer Floyd Curry was a member of a narcotics buy team. Curry testified that appellant, outside a Mission Hills apartment, sold to Curry .18 grams of a substance containing cocaine base. Appellant was wearing a gray Oakland Raiders sweatshirt, and her hair was up. After the sale, Curry left and other officers detained appellant. Curry returned and identified appellant, but she was not then wearing the above sweatshirt and her hair was pulled back.

Los Angeles Police Officer Romeo Rubalcava, another team member, saw Curry contact appellant, then leave and give a signal that a transaction had occurred. Rubalcava approached and saw appellant inside the apartment and wearing the above sweatshirt. When police brought her out of the apartment, she was wearing a black shirt. Police recovered the gray sweatshirt from inside the apartment's living room, which was the first room one entered upon entering the apartment. In defense, appellant denied possessing drugs or selling drugs to Curry, and claimed she was wearing a black long-sleeved shirt.

CONTENTIONS

Appellant contends (1) the trial court, which partially denied her Pitchess motion, erred to that extent and erred by precluding her from renewing the motion at trial and (2) the above errors violated her constitutional rights to due process, confrontation, compulsory process, a fair trial, and a meaningful opportunity to present a complete defense.

DISCUSSION

The Trial Court Erred by Denying Appellant's Pitchess Motion Seeking Discovery of Evidence of Dishonesty from Each Officer's Personnel File.

1. Pertinent Facts.

On October 12, 2004, appellant filed her pretrial discovery motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (hereafter, Pitchess motion). We note at the outset that appellant claims the trial court erred by only partially granting her Pitchess motion as to Curry, and by failing to grant the motion at all as to Rubalcava and two other police officers referred to in the police report discussed post, that is, Los Angeles Police Officers Jackson (serial number 30772) and Zavala (whose serial number is not stated in the report). However, Jackson and Zavala did not testify at trial. Perhaps for that reason, appellant in her reply brief requests, in pertinent part, on the issue of remedy, only that this court â€