Mercurius v. Superior Court

Filed 3/14/06 Mercurius v. Superior Court CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

ORIGINAL PROCEEDING; petition for writ of mandate. Michael Luros, Judge. Petition granted.

Michael P. Judge, Public Defender, Albert J. Menaster, Debra E. Werbel and Mark G. Harvis, Deputy Public Defenders, for Petitioner.

No appearance for Respondent.

Rockard Delgadillo, City Attorney, Carlos De La Guerra, Matthew C. St. George and Ronald Low, Deputy City Attorneys, for Real Party in Interest.

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The trial court abused its discretion in denying defendant David Edwin Mercurius's Pitchess[1] motion as to Officer Gonzalez.[2]

FACTUAL AND PROCEDURAL BACKGROUND

Mercurius was charged with one count of possession for sale and purchase of cocaine base in violation of Health and Safety Code section 11351.5. According to the report of the arresting police officers (Herrera and Gonzalez), the officers were traveling west on Seventh Street in the number two lane approaching Ceres Street. During that time Herrera observed a black male wearing a black baseball cap, green army jacket and green pants, later identified as defendant Mercurius, receiving an unknown amount of money from an unknown black male wearing a gray shirt, approximately 20 feet north of Seventh Street and Ceres Street. Herrera asked Gonzalez if he observed the possible narcotic transaction and Gonzalez said â€