P. v. Abdulhafeez
Filed 2/28/07 P. v. Abdulhafeez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. MUSLAH MOHAMMED ABDULHAFEEZ, Defendant and Appellant. | D048082 (Super. Ct. No. SCD189314) |
APPEAL from a judgment of the Superior Court of San Diego County, Roger W. Krauel and Melinda J. Lasater, Judges. Affirmed as modified.
After the trial court denied a motion to dismiss (Pen. Code, 995) and a motion brought pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), a jury convicted Muslah Mohammed Abdulhafeez (Abdulhafeez) of selling a controlled substance (Health & Saf. Code, 11352, subd. (a)), possessing a controlled substance for sale (Health & Saf. Code, 11351.5), possessing a controlled substance (Health & Saf. Code, 11350, subd. (a)), and disobeying a court order (Pen. Code, 166, subd. (a)(4)). Abdulhafeez admitted having served a prior prison term (Pen. Code, 667.5, 668). The court sentenced him to prison for the four-year middle term for selling a controlled substance. The court stayed sentence on the remaining convictions (Pen. Code, 654) and struck the prior prison term finding. Abdulhafeez contends that the trial court erred in entering a conviction for simple possession of a controlled substance because it is a lesser included offense of possessing a controlled substance for sale. He also asks this court to independently review the record of the Pitchess hearing.
FACTS
In early 2005, San Diego Police Detective Murphy asked paid informant D. Brown to attempt to purchase cocaine from Abdulhafeez. On February 4, 2005, Murphy provided Brown with $140 for a proposed purchase. Brown met with Abdulhafeez while police monitored the contact. After the transaction, Brown provided Murphy with a baggie that contained 5.47 grams of cocaine base. Brown testified that he purchased the cocaine from Abdulhafeez.
DISCUSSION
I.
The People concede, as they must, that simple possession of a controlled substance is a lesser included offense of possession of the same substance for sale. (See In re Adams (1975) 14 Cal.3d 629, 634.) The judgment is modified to strike the conviction for simple possession of a controlled substance.
II.
Abdulhafeez filed a Pitchess motion in which he sought "evidence of, or complaints of: excessive force, aggressive conduct, unnecessary violence, unnecessary force, false arrest, false statements in reports, false claims of probable cause, fabrication of charges or facts, or any other evidence of or complaints of dishonesty, neglect of duty, misuse of police authority, harassment or intimidation by Detective . . . Murphy."
A law enforcement officer's personnel records are confidential but subject to Evidence Code section 1043.[1] Section 1043, subdivision (b)(3), provides that a party who seeks disclosure of law enforcement personnel records must file "[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation . . . ." Section 1043 was enacted after the Supreme Court held that trial courts have discretion to order the government to disclose otherwise confidential personnel records when necessary to provide a defendant "a fair trial and an intelligent defense in light of all relevant and reasonably accessible information." (Pitchess, supra, 11 Cal.3d at p. 535.)
In City of Santa Cruzv.Municipal Court (1989) 49 Cal.3d 74, 84-85, the court stated:
"As we explained, a criminal defendant's right to discovery is based on the 'fundamental proposition that [an accused] is entitled to a fair trial and an intelligent defense in light of all relevant and reasonable accessible information.' [Citation.] Pitchess made it clear that 'an accused . . . may compel discovery by demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial.' [Citation.] In contrast to the detailed showing required by some civil discovery statutes [citations] the requisite showing in a criminal matter 'may be satisfied by general allegations which establish some cause for discovery' other than a mere desire for all information in the possession of the prosecution. [Citation.] The information sought must, however, be 'requested with adequate specificity to preclude the possibility that defendant is engaging in a "fishing expedition." ' [Citation.]"
In City of Santa Cruzv.Municipal Court, supra, 49 Cal.3d 74, a defendant, charged with resisting arrest, claimed self-defense against aggressive officers. The trial court ordered the city to provide the defense with law enforcement officers' personnel records reflecting complaints of excessive force. The Supreme Court held an affidavit providing information based on defense counsel's information and belief is sufficient. (Id. at p. 86.)
As indicated above, to initiate discovery of a peace officer's personnel information, a defendant must file a motion that is supported by a declaration showing good cause for the discovery. ( 1043.) "Good cause" in this context is "measured by 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents.' " (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016, quoting City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 83.) The good cause requirement has two parts. First, the declaration must demonstrate how the requested information is material to the pending litigation. Second, the declaration must state upon reasonable belief that the law enforcement agency has the requested records or information. ( 1043, subd. (b)(3); Warrick v. Superior Court, supra, 35 Cal.4th at p. 1019.)
Here, Abdulhafeez claimed in the trial court that he met the section 1043 threshold when his trial counsel filed an affidavit stating that information in Murphy's personnel record was material to his proposed defense of false arrest and false and incomplete or inaccurate reporting. Abdulhafeez claimed that Murphy's credibility is critical because Murphy is the only witness who is alleged to have seen the transaction between Abdulhafeez and the paid informant, and Murphy failed to include in his police report, that the informant had no drugs on him when he was searched by police. Under information and belief, defense counsel claimed that good cause existed to require the production of material from Murphy's personnel file because counsel had no other access to the material sought, and the information was relevant to the detective's "customs, habits and credibility to enable us to present a defense."
The trial court found good cause to conduct an in camera review of Murphy's personnel file and conducted an in camera hearing. The court found no record of discoverable material and denied the request for discovery.
The People are required to produce evidence from an officer's personnel file "that is relevant to the defendant's ability to defend against a criminal charge." (People v. Mooc (2001) 26 Cal.4th 1216, 1219.) Whether to grant or deny a motion to discover a peace officer's confidential personnel files lies in the trial court's discretion. (People v. Gill (1997) 60 Cal.App.4th 743, 749.) Here, the trial court denied the motion because it found nothing in the record that was discoverable. We have reviewed the personnel file
and agree. The trial court thus did not abuse its discretion in denying Abdulhafeez's motion for discovery.
DISPOSITION
The trial court shall amend the abstract of judgment to strike the conviction for simple possession of a controlled substance. The judgment is affirmed as so modified. The trial court shall advise the Department of Corrections and Rehabilitation of the amendment.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
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[1] All further statutory references are to the Evidence Code.