P. v. Joshua

Filed 6/22/06 P. v. Joshua 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Edwin Van Joshua appeals his conviction, by jury, of possession of an assault weapon (Penal Code, § 12280, subd. (b))[1] and possession of a firearm by a felon. (§ 12021, subd. (a)(1).) The trial court sentenced appellant to a total term in state prison of four years. Appellant contends the trial court prejudicially erred when it admitted evidence of a shooting that occurred very nearby and only a few minutes before appellant's arrest. In addition, appellant urges us to independently examine the sealed record of the in camera hearing held on his motion for discovery of the arresting officers' personnel files. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.) We affirm.

Facts

On the night of March 11, 2005, three Los Angeles police officers (Officer James Diamond and Sergeants Richard Gabaldon and Rob Brown) were patrolling in a marked police car when they heard a radio call reporting a "shooting in progress" at 42nd Street and Kansas Avenue. Fortuitously, the officers were only one block away from the location of the shooting. They reached Kansas Street and turned south. Each officer saw appellant running north on the opposite side of the street, holding an assault rifle in front of him as he ran. Appellant was holding the rifle "kind of across his body, kind of, with military terms, we would call kind of a like a [post] arms position." He demonstrated by placing "his hands in front, right hand palm up, left hand[] somewhat palm down, as if to be holding an object in front." The butt end of the rifle would have been held in the left hand and the muzzle in the right.

The officers stopped their patrol car in the middle of the street and got out to pursue appellant. When he noticed them, appellant ducked down behind a parked van, dropped the gun and kept running. The officers pursued appellant and caught him about one block away. Seconds later, one of the officers returned to the van and recovered the rifle.

After they had appellant in custody, the officers went to the apartment house where shots had reportedly been fired. In the hallway of the building, officers found many spent bullet casings from a rifle and from a .45 caliber revolver. The rifle shells were of a type that could be fired from the rifle they found a few minutes earlier. The hallway walls and mailboxes were riddled with bullet holes, as was the door to an apartment and a car parked on the street immediately adjacent to the building.

One finger print was found on the rifle. It did not match appellant's. The spent rifle shells were a size that could have been fired from the rifle. The rifle was operable and met the statutory definition of an assault rifle.

Discussion

Appellant contends the trial court prejudicially erred when it admitted evidence of the shells and bullet holes found in the apartment building because there was no evidence tying him or the recovered rifle to that shooting. The argument is without merit. The evidence was relevant to explain what the police officers were looking for when they drove down Kansas Street and encountered appellant. The evidence was also relevant to rebut appellant's claim that he did not possess the rifle. Because the report of shots fired was followed so quickly by the officers' observation, pursuit and arrest of appellant, a jury could reasonably infer that appellant possessed a weapon from which at least some of those shots were fired. There was no abuse of discretion. (Evid. Code, § 210; People v. Jablonski (2006) 37 Cal.4th 774, 821; People v. Panah (2005) 35 Cal.4th 395, 474.)

Appellant requested discovery of the arresting officers' personnel records including all complaints against the officers regarding planting evidence, fabrication of police reports, false testimony and perjury. The trial court conducted an in camera review of the personnel records and finding no responsive complaints, denied disclosure. At appellant's request, we have reviewed the sealed transcripts of those proceedings. The trial court's rulings were an appropriate exercise of discretion because the matters left undisclosed are not responsive to appellant's discovery requests. (People v. Mooc (2001) 26 Cal.4th 1216, 1232; Pitchess v. Superior Court, supra, 11 Cal.3d 531.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Norm Shapiro, Judge

Superior Court County of Los Angeles

______________________________

Robert M. Sweet, 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, Carl N. Henry, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.