P. v. Alexander

Filed 2/5/10 P. v. Alexander CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, William R. Chidsey, Judge. Reversed in part and remanded with directions.

Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted appellant Larry Alexander of possession of cocaine base for sale (Health & Saf. Code,  11351.5). The trial court found two alleged prior strikes to be true. (Pen. Code,  1170.12, subds. (a)-(d), 667, subds. (b)-(i).) The court struck one, and sentenced defendant to a total term of eight years in prison, consisting of the midterm of four years, doubled. Defendant appeals from the judgment of conviction, contending: (1) the trial court erred in denying his Pitchess motion without conducting an in camera inspection of the relevant personnel records of two of the four police officers involved in stopping and arresting him; (2) this court must review the personnel records of the two police officers regarding whom the court granted the Pitchess motion, to determine if any records were improperly withheld from appellants trial counsel; (3) the trial court erred by excluding testimony from appellant and his girlfriend that the police used excessive force when they arrested him, and from a witness who had previously accused one of the officers of using excessive force during an arrest; and, (4) the trial court erred by permitting the prosecution to introduce evidence that the area in which appellant was detained was known for narcotics sales by street gangs, thus implying that appellant was a gang member.

We conclude that the trial court erred in not conducting an in camera review of the records for one officer, Officer Carmen Gutierrez, but reject appellants other claims of error. We reverse the judgment, with directions to the trial court to conduct an in camera review of complaints regarding Officer Gutierrez relating to dishonesty, fabrication of charges or evidence, or excessive use of force. If the hearing reveals no discoverable information in the officers personnel files which would lead to admissible evidence helpful to appellants defense, the trial court shall reinstate the original judgment and sentence, which shall stand affirmed. If the in camera hearing reveals discoverable information bearing on the officers honesty which could lead to admissible evidence helpful to appellant in defense of the charge, the trial court shall grant the requested discovery, allow appellant an opportunity to demonstrate prejudice, and order a new trial if prejudice is demonstrated. We reject appellants other claims of error.

factual background

Prosecution Evidence

On September 7, 2007 around 10:30 p.m., Los Angeles Police Department (LAPD) Officers Peter McCoy, Carmen Gutierrez, Mike Leese, and Budek (no first name) were driving on Link Avenue near Imperial Highway in Los Angeles, in an area known for narcotics sales. McCoy, Gutierrez, and Leese (but not Budek) saw appellant reach into his shirt pocket and retrieve something, which he handed to a man standing beside him, who put the object into a black plastic bag. Believing a narcotics transaction had occurred, McCoy stopped the patrol car and the officers got out. Appellant put his arm around the other man and said, He gave it to me. He put it on me. It aint mine. McCoy told both men to turn and put their hands on their heads. McCoy briefly checked the area, including a nearby car, for narcotics and weapons. As McCoy approached the men, appellant turned and ran down Link Avenue.

McCoy, Budek, and Gutierrez pursued appellant on foot. McCoy told appellant to stop, but he continued running. Leese pursued appellant in the police car. As appellant ran, he removed his black button-front outer shirt and then an undershirt, and dropped them to the ground. Gutierrez retrieved the clothing, and found in the right front pocket of the black shirt two pieces of an off-white substance resembling rock cocaine, five razor blades in a plastic baggie, and 18 small plastic baggies. She found $35 in the front left pocket of the black shirt.

Appellant continued running and jumped over several fences. McCoy lost sight of him, but shortly thereafter Budek detained appellant in the backyard of a residence. McCoy climbed the fence and joined Budek. McCoy recognized appellant as the man he had been pursuing by his clothing, his build, and the fact he was sweating heavily. McCoy patted appellant down and found no drugs or drug paraphernalia. The police officers arrested appellant and transported him to the police station.

Gutierrez searched appellant at the police station, and found $127 in his wallet, which she gave to Budek. She found no drug paraphernalia. Leese and Budek prepared the paperwork to book appellants property, and delivered it to the evidence locker.

Los Angeles City Criminalist Veronica Chiquillo testified that the two off-white colored rocks were 5.8 grams of cocaine base. Leese testified that .02 grams of cocaine was a usable amount, and in his opinion based on his training and experience, appellant had possessed the cocaine base for the purpose of selling it.

McCoy, Leese, and Gutierrez denied having any prior contact with appellant. They denied planting evidence in the shirt that appellant had thrown to the ground.

Defense Evidence

Appellant testified that on the day in question he saw his friend, Daniel Curry. He had known Curry for about one year, but said they did not hang out together. Appellant called out a greeting to Curry, but before reaching him, the police car pulled up quickly and four officers got out, saying Wheres the drugs? Appellant testified that he did not hand anything to Curry. He did not recall saying He put it on me, or It aint mine, but allowed that he might have said that. Appellant said that McCoy searched him and Curry thoroughly, for five to six minutes, but found nothing in appellants pockets other than his wallet, receipts, and keys. As McCoy and the other officers began searching the ground with a flashlight, appellant ran because he was afraid the officers would plant drugs on him. He testified that he knew from the neighborhood that the police go around beating up people and planting dope on people. He later said, The reason I ran is because I was a three striker, and in the neighborhood, they know hes good for planting dope and beating up people.^[1] The three male officers followed him when he ran, but the female officer did not. Appellant denied that he ever willingly took either of his shirts off during this incident, and said the officers ripped his shirt off.

Appellant denied ever selling cocaine to anyone, including Curry, and also denied being sold cocaine by Curry. He also denied possessing the rock cocaine, razor blades, or plastic baggies allegedly found in his shirt.

Curry testified that when the officers first approached him and appellant, appellant said, He passed me something. The police officers asked them, Where is the drugs? Wheres the dope? Curry said that the police officers had thoroughly searched him and appellant before appellant ran away. Curry said the officers did not find narcotics on appellant. The female police officer initially stayed with Curry when appellant ran away, but after a few minutes she followed the others and left Curry standing there. He eventually returned to his home nearby.

Curry said that he regularly used crack cocaine. On the night of September 7, 2007, he was holding a black plastic bag that contained alcohol and a glass pipe he used to smoke cocaine. He denied that appellant handed him anything.

discussion

I. The Partial Denial of the Pitchess Motion

Appellants Motion and the Courts Ruling

Appellant filed a pretrial motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, in which he sought discovery of the personnel records of Officers McCoy, Gutierrez, Leese, and Budek. Specifically, appellant sought complaints against the officers relating to acts of aggressive behavior, violence, excessive force; bias; coercive conduct; violation of constitutional rights; fabrication of charges, evidence, reasonable suspicion and/or probable cause; illegal search and seizure; perjury or dishonesty; and any other evidence of misconduct amounting to moral turpitude.

Defense counsel stated in her declaration in support of the Pitchess motion that appellant was in the area of Link Avenue and Imperial Highway with a friend when he saw LAPD officers. He left quickly because he did not wish to be contacted. Several officers chased appellant and caught him, threw him to the ground, and beat and kicked him. He later suffered a stroke in jail custody. Appellant d[id] not know which Officers hurt him, but several Officers participated in the beating. Appellants girlfriend said she saw three officers beat appellant while he was handcuffed. Appellant did not have any drugs in his possession, and did not know where the drugs came from.

The LAPD opposed the motion. It argued that appellant had failed to show good cause for discovery, because although appellant denied possessing narcotics, he did not deny making the spontaneous statement to the police, He gave it to me, he put it on me, it aint mine. Therefore, appellants claim of innocence in his Pitchess motion was inconsistent with his protestations when first contacted by the police. According to the LAPD, Officers McCoy and Gutierrez observed appellant engage in a suspected narcotics transaction, and detained appellant. Officers Budek and Leese were not percipient witnesses to the transaction. Officer Gutierrez was the officer who later recovered the narcotics and related evidence in the pocket of appellants discarded shirt.

At the hearing on the Pitchess motion, the court found that a prima facie case for discovery had been established as to Officers McCoy and Leese as it relates to any complaints in regards to fabrication of charges, fabrication of evidence, illegal arrests, illegal search and seizures, writing false reports, and planting of evidence, using of excessive force. The court identified those officers as the two officers who initiated the arrest. However, it was officers McCoy and Gutierrez (not Leese) who initiated the stop, and it was Officer Gutierrez who recovered the narcotics. The court denied the motion as to Officers Gutierrez, as well as to Officer Budek. Thereafter, the court held an in camera hearing, and ordered disclosure of seven complaints regarding Officer McCoy and two regarding Officer Leese.

Contention on Appeal Regarding the Failure to Order Review of the Records of Officers Gutierrez and Budek

Appellant contends that the trial court erred in denying the Pitchess motion as to Officer Gutierrez. We agree. The court intended to grant discovery of the personnel records of the officers who initiated the contact with defendant, and Officer Gutierrez was one of those officers. The court apparently misspoke when it named Officer Leese instead of Officer Gutierrez.

Resurrecting the arguments made by the LAPD in the trial court, respondent argues, in substance, that appellant failed to show good cause for discovery of any officers records. However, we decline to conclude that the court abused its discretion in finding that appellant made an adequate showing with respect to the officers who initiated the arrest -- Officers McCoy and (despite the courts mistake) Gutierrez. (See People v. Hughes (2002) 27 Cal.4th 287, 330 [trial courts ruling on Pitchess motion reviewed for abuse of discretion.)

Appellant provided a plausible factual scenario of officer misconduct. (See Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1027 (Warrick).) He was in the area with a friend. When he saw police officers, he left because he did not want to be contacted. Officers chased him, threw him to the ground, and beat him so severely he later suffered a stroke in jail custody. He did not possess any drugs and did not know where the drugs came from. His girlfriend was a witness to the beating. It is true that he did not specifically deny making the statements attributed to him by the police relating to a companion planting drugs on him. But this failure did not deprive his showing of the requisite internal consistency (Warrick, supra, 35 Cal.4th at p. 1026) necessary to obtain discovery. Given the relatively low threshold for discovery (Warrick, supra, 35 Cal.4th at p. 1019), the court did not abuse its discretion in concluding that good cause existed for discovery of the personnel records of the officers who initiated the contact.

Appellant also contends that the court erred in failing to find good cause for discovery of Officer Budeks personnel records. However, appellant fails to point to any evidence in the record of the Pitchess motion that described Officer Budeks role in the arrest and discovery of narcotics so as to justify discovery of his records. Trial testimony later revealed that Officer Budek participated in the pursuit and detention of defendant. But no such evidence was included in the record of the Pitchess motion. We note, for instance, that appellant did not produce a copy of the arrest report as part of his motion. In any event, Officer Budek did not testify at trial, and it was Officer Gutierrez who discovered the narcotics evidence, not Officer Budek. Therefore, appellant could have suffered no prejudice from any lack of discovery regarding evidence relevant to Officer Budeks credibility.

Thus, we reverse the judgment and remand for the trial court to conduct an in camera review of the personnel records of Officer Gutierrez only. If the court finds no relevant discoverable information in the records, it should reinstate the judgment in its entirety. If the court finds discoverable material, it must order disclosure, allow [appellant] an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed. (People v. Gaines (2009) 46 Cal.4th 172, 181.) If appellant cannot demonstrate prejudice at that point, the trial court should reinstate the judgment of conviction. (Id. at pp. 181-183. See also People v. Memro (1985) 38 Cal.3d 658, 684; People v. Johnson (2004) 118 Cal.App.4th 292, 296, 304-305.)

II. Exclusion of Defense Evidence Regarding Excessive Force

Factual Background

Appellant contends that the trial court erred by precluding him from presenting evidence at trial regarding the arresting officers use of excessive force against him and other arrestees. Before trial, the People moved to exclude any evidence regarding the police officers use of force during appellants arrest, arguing that such evidence was irrelevant to the charge of narcotics possession. Defense counsel argued that such evidence was relevant, asserting that the officers had effected an illegal detention, and because they started off that way and lost control of the two people who were detained, initially they tried to cover that up by detaining them with excessive force and then planting drugs on [appellant]. According to defense counsel, the officers use of force was relevant to establish their motive to plant evidence.

The trial court conducted an Evidence Code section 402 hearing regarding admission of evidence of the officers purported use of force. Appellants girlfriend testified she saw two officers kicking and stomping appellant while he was handcuffed on the ground. Officer McCoy also testified regarding the arrest. He said Officer Budek tackled appellant in a backyard. Officer McCoy then got on top of appellant, but it was difficult to gain control of him because he was thrashing about and was very sweaty. At one point appellant tried to push up from the ground. Officer McCoy knocked his elbows down and delivered distraction strikes to appellants face with the palm of his hand, but appellant did not release his hands from the ground beneath him. Officer McCoy used his knees to deliver several distraction strikes to appellants torso and upper back, and appellant then released his hands and Officer McCoy was able to handcuff him. Officer McCoy denied that he or Officer Budek ever kicked or stomped appellant.

Defense counsel then began questioning Officer McCoy about his prior arrest of Calvin Walker. Walker, who was discovered during the Pitchess process, claimed that Officer McCoy had used excessive force when arresting him. Defense counsel made an offer of proof that Walker would testify that Officer McCoy followed him home and tried to enter Walkers backyard, but Walkers dog prevented him from doing so. Walkers mother put the dog inside the house, and Officer McCoy entered the yard and threw Walker to the ground, handcuffed one of his hands, and punched him while pressing his knee into Walkers back. The police searched Walkers home and messed everything up. Walker was charged with assault with a deadly weapon, i.e., his dog. Walker was convicted and given three years of probation. Walker would testify that Officer McCoy lied in court. Walker filed a complaint against Officer McCoy and had received a letter from the LAPD in response, but Walker did not know what the letter said.

Defense counsel requested that he be permitted to introduce testimony from Walker that Officer McCoy had punched him during his arrest while he was handcuffed. Defense counsel argued that the testimony would support the defense theory that Officer McCoy had a custom and habit of such behavior, and would impeach Officer McCoys testimony that he never engaged in such behavior.

The trial court ruled that no evidence concerning the officers use of excessive force would be admitted, from appellants girlfriend, appellant, or the prior arrestee discovered during the Pitchess process. In relevant part, the court found that allegations regarding excessive force were not relevant given the charge was possession of narcotics. The court also found that evidence regarding excessive use of force was inadmissible under Evidence Code section 352 because it would create undue prejudice, it would tend to confuse or mislead the jury, and its probative value would be far outweighed by its prejudicial effect.

During appellants testimony, the trial court sustained the prosecutors objection to appellants proposed testimony that he ran from the officers because he had heard stories that Officer McCoy had a practice of beating people up and planting evidence on them. However, shortly thereafter appellant testified to that effect, although not specifically regarding Officer McCoy.

Discussion

Insofar as the court relied on Evidence Code section 352 to exclude evidence regarding excessive use of force, we find no abuse of discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.) First, the proposed evidence of use of force had, at best, an extremely attenuated connection to the claim that the police planted the narcotics. There was no dispute that defendant fled from the police and was apprehended through some use of force. Appellant fails to articulate a clear theory to explain how the police might have believed that such use of force, if excessive, could be covered up or justified by planting narcotics in his discarded shirt after the use of force. Either the use of force in apprehending defendant was excessive, or it was not. The discovery of narcotics bore little, if any, relevance to the issue.

Second, there was no dispute that when appellant was first approached by the police, he stated, He put it on me. It aint mine. Of course, this statement implicitly acknowledged that an exchange of narcotics between appellant and Curry had occurred. This concession made the probative value of evidence of excessive force even more attenuated. For the excessive force evidence to have any relevance, the jury would have had to reason that, although defendant implicitly acknowledged that a narcotics transaction had occurred, he did not actually have narcotics and related evidence on his person, and therefore the police planted such evidence in order to somehow justify or cover up their use of force. That chain of reasoning contained little probative force.

Third, Officer McCoy testified at the Evidence Code section 402 hearing that he did indeed strike appellant several times, with both the palm of his hand and his knee, when he and Officer Budek apprehended him, but did so only to subdue him. This account was not fundamentally inconsistent with the description offered by appellants girlfriend, whose testimony the trial court excluded. Yet the introduction of her testimony, and of other evidence regarding the purported use of excessive force by the officers in this case, likely would have required the introduction of expert testimony to explain the concept and limits of the permissible use of force by a police officer. That is, appellants theory depended on the notion that the officers used excessive force, or at least believed they had, and wished to cover it up or justify it by planting drugs. Thus, the prosecution would be entitled to introduce evidence tending to show that the officers use of force was justified and provided no motive to fabricate. Defendant might well be entitled to produce contrary evidence. In short, there likely would have been a mini-trial not only on the specific force used in subduing defendant, but on whether that force was reasonable.

Fourth, Walkers proposed testimony had little, if any, tendency to impeach Officer McCoys testimony or to prove that Officer McCoy fabricated evidence in the present case. Walker had been tried and convicted of assaulting Officer McCoy with a deadly weapon. There was no evidence that Officer McCoy planted evidence as was alleged in the present case. A mini-trial on the circumstances of that case would have been of little help to appellant, but would have been of considerable distraction from the present case.

Given the slight, if any, probative value of the evidence of excessive force, and the likelihood of confusion of issues and undue consumption of time, we conclude that the trial court did not err under Evidence Code section 352 in excluding the evidence.

Appellant argues that the trial court engaged in an improper determination of Officer McCoys credibility when he testified at the Evidence Code section 402 hearing. Appellant argues that the sole question at the section 402 hearing should have been whether the defense evidence was relevant to matters at issue in the trial, including McCoys credibility, and that the trial court should not have weighed McCoys credibility against the proposed testimony of defense witnesses during that hearing. The trial court made a general statement that every witness credibility is in play every time they raise their hand to be sworn, but we see nothing in the record to indicate that the trial court engaged in weighing Officer McCoys credibility against that of the defense witnesses. As appellant asserts, issues regarding witness credibility are properly left to the jury (People v. Smith (2007) 40 Cal.4th 483, 515-516), and that is precisely what the trial court did in allowing appellant and the police officers to testify regarding the incident in question. In ruling that evidence regarding the excessive use of force was inadmissible under Evidence Code section 352, the trial court did not express doubt about the credibility of the defense witnesses.

Finally, contrary to appellants contention, exclusion of the evidence of excessive force did not violate his federal constitutional right to due process. (See People v. Cornwell (2005) 37 Cal.4th 50, 82 [application of Evidence Code section 352 generally does not violate due process; no due process violation in exclusion of defense evidence not sufficiently probative to be vital to the defense] disapproved on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

III. Review of McCoys and Leeses Records by This Court

Appellant contends that the record available to him does not reveal the basis for the trial courts determination whether to disclose information in the personnel files of Officers McCoy and Leese. Appellant argues the trial court might have withheld crucial discovery, and therefore this court must review the materials contained in the officers personnel files. (People v. Mooc (2001) 26 Cal.4th 1216, 1232.)

We have reviewed the reporters transcript of the trial courts in camera review of the personnel records of Officers McCoy and Leese. The record adequately identifies the documents examined (see Mooc, supra, 26 Cal.4th at p. 1229) and the courts reasons for disclosure and nondisclosure. We find no abuse of discretion in the trial courts rulings.

IV. Admission of Testimony that Gang Members Sold Drugs in the Area

Officer McCoy testified over defense objection as follows: That area is particularly known to myself as a high narcotics area. Narcotics users and sellers will frequent that area to basically buy and sell narcotics. I have made arrests there in the past as a patrol officer and as a gang officer and usually there have been gang members that sell narcotics in that area. The trial court overruled defense counsels Evidence Code section 352 objection. On appeal, appellant argues that, although the evidence linking appellant to gangs was limited, there was a clear insinuation that he was a gang member, which would have seriously undermined his credibility to the jury. We conclude that the evidence did not insinuate that appellant was a gang member, or even necessarily suggest that he was. Rather, Officer McCoy was simply describing the area involved, as a means of giving context to the officers judgment that a narcotics transaction had likely occurred involving appellant. We find no error.

disposition

The judgment is reversed with directions to the trial court to conduct an in camera review of complaints regarding Officer Gutierrez relating to fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion and/or probable cause, perjury, dishonesty, writing of false police reports, false or misleading internal reports, and any other evidence of misconduct amounting to moral turpitude. If the hearing reveals no discoverable information in the officers personnel files which would lead to admissible evidence helpful to appellants defense, the trial court shall reinstate the original judgment and sentence, which shall stand affirmed. If the in camera hearing reveals discoverable information bearing on the officers honesty which could lead to admissible evidence helpful to appellant in defense of the charge, the trial court shall grant the requested discovery, allow appellant an opportunity to demonstrate prejudice, and order a new trial if prejudice is demonstrated.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J. SUZUKAWA, J.

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^[1] The prosecutor objected and moved to strike the answer. The trial court initially ruled the prosecutor had opened the door, but when the prosecutor asked if the court would allow the entire answer to remain or just the first part, the court granted the motion to strike without specifying if all or part of the answer was stricken.