P. v. Sandoval

Filed 8/24/06 P. v. Sandoval CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles L. Peven, Judge. Affirmed and remanded with directions.

Allen G. Weinberg, 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, Lawrence M. Daniels and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Valentin Gonzalez Sandoval appeals from the judgment entered upon his conviction by jury of one count of possession of cocaine for sale (Health & Saf. Code, § 11351). Imposition of sentence was suspended, and defendant was placed on three years formal probation on the condition that he spend 365 days in county jail. Defendant contends that the trial court (1) erred in denying his motion to suppress evidence, (2) deprived him of his rights to confront and cross-examine witnesses and to present a complete defense by refusing to allow him to call witnesses to impeach the arresting police officer, (3) deprived him of his rights to due process and a fair trial by denying that portion of his Pitchess[1] motion seeking complaints regarding the arresting police officers' racial bias, and (4) committed reversible error by failing to order full disclosure of police officer character evidence pursuant to Brady v. Maryland.[2] Defendant also requests that we review the discovery produced and withheld in response to his Pitchess motion to determine whether all required documents were disclosed.

We affirm and remand with directions.

FACTUAL BACKGROUND

The Prosecution's evidence

On June 12, 2003, at approximately 10:30 p.m., Los Angeles Police Department Officer Jaime McBride and his partner, Officer Adrian Moody, were patrolling the alley behind Schoenborn Street, in the City of Northridge. Officer McBride observed two male Hispanics sitting in a carport talking; defendant, who the officers recognized from prior casual contacts, and a man later identified as Jesus Betancort. Officer Moody had had contact with defendant approximately 10 times in the preceding two months. The carport did not have a pedestrian door, but had a sliding gate which had to be opened for cars to enter or exit.

Officer Moody stopped the patrol car outside of the open carport gate, and Officer McBride exited and walked toward defendant. Defendant stood up, casually placed a leather glove he was holding on a shelf behind him and walked towards the officer. As Officer McBride spoke with defendant, Officer Moody walked to where defendant had been sitting in the carport and saw the open end of the glove facing him. Inside, he observed a white powder, which appeared to be cocaine, in a clear plastic baggy. He confiscated the glove. Inside were five small bindles containing a white powdery substance, a larger bag containing the white powdery substance, and a $5 bill with the white powdery substance on it. The powdery substance was later determined to be cocaine. Officer McBride handcuffed and searched defendant and found five additional sandwich bags similar to those found inside the glove. Defendant was arrested, but Betancort was released after he was searched and nothing was uncovered. Minutes later, defendant's daughter, Maria Gonzalez (Maria), and her boyfriend drove down the alley. After his arrest, defendant admitted to Officer McBride of possessing and selling cocaine.

A Los Angeles police narcotics expert opined that defendant's location in an area known for nighttime drug sales, the quantity of drugs he possessed, and the packaging of the drugs were consistent with possession of drugs for sale.

The defense's evidence

Maria testified on her father's behalf that on the night of his arrest, she was living with him. She arrived home with her boyfriend and parked near the carport. After she exited her car, a patrol car came by and parked in front of her. One of the officers told her to go inside. She saw nothing in defendant's hands while he was sitting. Neither he nor Betancort had gloves on, and she had never before seen defendant with the glove taken by the police. When Maria came back outside, defendant and Betancort were in handcuffs. She was told to return inside, and the police took defendant away in the police car.

Betancort also testified for defendant, whom he had known for 10 years. On the night in question, they were fixing the carport gate. A police car stopped in the alley, and the officers told him and defendant not to move. He and defendant were handcuffed, and the officers searched everywhere. Betancort never saw police recover a glove, nor had he ever seen the glove shown to him during trial.

DISCUSSION

I

SUPPRESSION MOTION

Before trial, defendant filed a motion to suppress evidence pursuant to Penal Code section 1538.5.[3] He claimed that Officer Moody's entry into his parking area without a warrant constituted an unlawful search of his dwelling. At the suppression hearing, the parties stipulated that Officer Moody did not have a search warrant when he entered the carport. Officer Moody testified that the carport had a roof and was enclosed by a wrought iron fence on three sides and the apartment complex wall on the fourth side. It had a sliding gate that had to be opened and closed for cars to enter and exit.[4] In the month or two before the night of defendant's arrest, he had six to 10 contacts with defendant. Officer Moody entered the carport on at least three to five of those occasions. He also had contact with other residents of the apartment complex in the carport at different times in the previous months. On some of the occasions, including on June 12, 2003, the sliding gate was open.

Officer Moody testified that on the evening of June 12, 2003, he stopped his patrol car close to the opening of defendant's carport. Defendant approached the officers' vehicle, remaining in the carport area, and engaged Officer McBride in conversation. From outside of the carport, Officer Moody could see a table, but could not see any money, cards or other indication that gambling was occurring, as he had seen in the past. Without asking permission, he entered the carport and walked to where defendant had been sitting. He noticed the glove, the open end of which was facing him, and saw what appeared to be an off-white powder and plastic baggies inside.

At the conclusion of Officer Moody's testimony, defendant's counsel argued that the carport was not a public walkway, as the apartments could not be accessed through it. It was not open to delivery people or visitors, and the officers observed no suspicious activity when they arrived.

The trial court denied the motion, stating: â€