P. v. Armenta

Filed 10/10/08 P. v. Armenta CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Shari K. Silver, Judge. Affirmed in part, reversed in part and remanded with directions.

Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant Pilar Mendoza Armenta.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant Sabrina Elizabeth Fugua.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendants and appellants, Sabrina Elizabeth Fuqua and Pilar Mendoza Armenta, appeal from the judgment entered following their convictions, by jury trial, for sale of cocaine, with prior prison term findings (Fuqua only). (Health & Saf. Code,  11352; Pen. Code,  667.5).^[1] Fuqua was sentenced to prison for six years. Armenta was sentenced to three years probation. Defendants contend there was trial error.

The judgment is affirmed in part and reversed in part.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), we find the evidence established the following.    

1. Prosecution evidence.

On the afternoon of May 17, 2006, Los Angeles Police Officer Mario Barillas was working undercover on a narcotics buy team at Hansen Dam Park in Sylmar. Barillas was wearing a transmitter which allowed other officers to monitor his conservations.

Barillas testified he drove into a parking lot and walked over to a white van parked nearby. This van belonged to defendant Armenta, who was sitting in the drivers seat. There was one other car in the parking lot, but it was not next to Armentas van. In Spanish, Barillas asked Armenta if anyone was out serving, which was slang for selling drugs. Armenta asked how much he wanted and Barillas said a 20, which meant $20 worth. Armenta called two females over to him from the park, one of whom was defendant Fuqua. When Armenta told Fuqua that Barillas was looking for . . . a 20, Fuqua asked Armenta for the money. Armenta then asked Barillas for the money and Barillas gave him a marked $20 bill, which Armenta in turn handed to Fuqua.

Barillas testified Fuqua then walked about 30 yards into the park, where she met codefendant Willie Brown^[2]and handed him money. Brown reached into the back of his waistband and appeared to retrieve something which he handed to Fuqua. Fuqua came back to Armentas van. By this time, Barillas had walked over to the drivers side of the van. Fuqua handed a cocaine rock to Armenta, who handed it to Barillas. Barillas returned to his own car, signaled to his fellow officers he had made a buy, and started to drive away. He saw that Fuqua had gotten into Armentas van and that they were detained as they drove toward another parking lot.

Barillas characterized Armentas role in the transaction as the hook, the person who refers a buyer to another person who is holding the drugs. Barillas opined Fuqua was acting as a second hook and that Brown was the supplier, the person who was holding the drugs.

Detective Sylvia Ruize was Barillass supervisor and she had been monitoring his transmitter that afternoon. Although she could hear Barillas, she could not see him or the people he was talking to. She heard Barillas ask if anyone was selling, a male voice reply How much do you want?, and Barillas answer I want a 20. Ruize then heard a female voice say You need to get the money, and a male voice say I need to get your money. Ruize testified she was the only detective fluent in Spanish who had been monitoring Barillass conversations.

Officer Michael Saragueta was working undercover in the park that afternoon. He saw Barillas approach the white van and speak to the driver. As they spoke, Fuqua and another woman approached the van. Fuqua then walked into the park, spoke to Brown briefly, and appeared to exchange something with him.

Officer Hector Diaz testified he had been watching the events through binoculars. He saw Barillas standing at the passenger window of the van talking to Armenta. Fuqua and another woman approached, Armenta spoke to Fuqua, and then Barillas and Armenta appeared to exchange something. Fuqua and Armenta, in turn, appeared to exchange something, and then Fuqua walked away and spoke to Brown. Diaz saw Fuqua and Brown exchange something. Fuqua returned to the van and handed something to Armenta, which Armenta then handed to Barillas, who had come around to the drivers side of the van. Diaz did not recall any other vehicles having been parked near the van.

Detective Kip Kanchanamongkol arrested Brown inside the park. The marked $20 bill was not in his possession, nor did he have any drugs on him. Three other people were arrested that day: Fuqua, Armenta and Hester, the woman who had approached Armentas van with Fuqua. Fuqua had neither drugs nor money on her. Hester was apparently never charged with any crime.

A criminalist testified the item Barillas received from Armenta was cocaine base.

2. Defense evidence.

Armenta testified he had driven to Hansen Dam Park that day after work to meet friends, which was something he routinely did. He parked next to Chris Schmerber, who was sitting inside his truck. He and Schmerber chatted for a while, each sitting in his own vehicle. As they were talking, Fuqua and another woman approached and asked Armenta for money to buy sodas. He gave them each a dollar. Meanwhile, Barillas approached and asked Armenta who was selling drugs in the area and said he wanted $20 worth. Armenta told Barillas to go somewhere else for that.

While Armenta was talking to Barillas, Fuqua walked over to Schmerbers truck and got in. The other woman walked to the front of Armentas van, where two other people were standing. Barillas walked over to these three people and spoke to them. Armenta heard them tell Barillas to go wait in his car. Instead, Barillas came back to the van and continued chatting with Armenta. As they were talking, someone grabbed Armenta by the arm from behind and handed him a rock of cocaine. Armenta was about to throw it away when Barillas said, Give it to me, its mine. I bought it. Afraid that Barillas might harm him, Armenta gave him the cocaine. Armenta denied taking any money from Barillas or calling the two women over to facilitate a drug transaction.

Chris Schmerber testified he knew both Fuqua and Armenta. That afternoon, his pickup truck was parked in a lot at Hansen Dam Park. When Fuqua came by on her bicycle and asked for a ride home; Schmerber agreed. Fuqua put her bike in the back and got into the cab. They were sitting there when Armenta drove up in his van and parked next to Schmerber. Schmerber saw Barillas and several women, including Hester, around Armentas van that afternoon. Fuqua stayed in Schmerbers truck the entire time, except for once when she left to use the bathroom. Schmerber testified Fuqua never walked up to Armentas van.

Tonya Johnson, codefendant Browns girlfriend, testified. That afternoon, she saw Fuqua sitting in Schmerbers truck in the parking lot. Fuqua was still in Schmerbers truck when Brown was arrested. As Schmerber drove away from the park with Fuqua, they were pulled over by the police.

3. Rebuttal evidence.

Barillas testified he may have been mistaken when he testified on direct examination that Fuqua had initially walked up to Armentas van from the park, and when he testified she had gotten into Armentas van after giving him the cocaine. However, Barillas insisted there was no pickup truck parked next to the drivers side of Armentas van. Barillas testified he would never have placed himself between two vehicles like that when making a drug buy because it would have been dangerous and it would have prevented fellow officers from witnessing the buy.

4. Pitchess motion background.

Officer Barillas wrote the arrest report describing his cocaine purchase and the involvement of Armenta and Fuqua. Armenta filed a pretrial Pitchess motion seeking discovery of Barillass personnel records. The motion asserted Armenta had had nothing to do with any drug transaction, and that he had only passed the cocaine to Barillas because he didnt want to antagonize him. Fuqua also filed a Pitchess motion, joining in the discovery request as to Barillas, but also seeking the personnel records of Officers Green, Mossman, Kanchanamongkol, Ruize, Saragueta, Diaz and Vizcarra. Fuquas motion noted that, according to Barillass arrest report, Green, Mossman, Kanchanamongkol and Ruize had been monitoring Barillass transmitter, and Saragueta, Diaz, Vizcarra and Kanchanamongkol had observed the various hand-to-hand transactions.

The trial court (Schuit, J.) granted both Pitchess motions as to Barillas, but denied Fuquas request as to any other officer on the ground she had not shown good cause: [I]n order to get Pitchess discovery as to those officers, there needs to be some allegation of misconduct by them. That hasnt happened yet. Maybe in the future if one of those officers takes the stand and testifies a certain way, then theres an allegation they committed misconduct by conforming their testimony perhaps to the statements of Officer Barillas in the report thats before me. But unless and until that happens, I cant speculate that they might commit misconduct . . . . [] So Ill go ahead and deny the request to get Pitchess discovery on the other officers and grant it as to Barillas to the same extent I did with respect to defendant Armenta . . . which is acts of dishonesty and false reporting.

The case ultimately went to trial before a different judge (Silver, J.). When the prosecution called Detective Sylvia Ruize, the first police officer to testify after Barillas, Fuqua objected on the ground her pretrial Pitchess motion as to Ruize and the other officers had been denied as premature. While the trial court seemed to agree the pretrial motion should have been granted, as it was quite obvious the other officers were going to be called to corroborate Barillass testimony, the court ruled it would be too disruptive to halt the ongoing trial to take up the discovery issue: [R]easonable minds would likely conclude that the People at trial would be calling the undercover officer who was the author of the report and several other officers who either were part of the buy team, heard or observed in person events that allegedly took place at . . . Hansen Dam Park Area. [] So my question is . . . if this Pitchess information was critical to the defense, why did the defense announce ready for trial without taking further action, if necessary? The trial court noted it had asked if there were any [Evidence Code, section] 402 issues before we started trial, I must have asked three times, and nobody answered yes to 402.

The trial court thereupon refused to grant defendants a continuance in order to pursue Pitchess discovery, and ruled the prosecutor could call the officers whose testimony corroborated Barillas.

CONTENTIONS

1. Armenta contends the trial court should have either granted a continuance to allow Pitchess discovery or, in the alternative, precluded the officers testimony.

2. Fuqua contends his pretrial Pitchess motion should have been granted in full.

DISCUSSION

1. Legal principles.

Evidence Code sections 1043 and 1045, which codified our decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531 . . . , allow discovery of certain relevant information in peace officer personnel records on a showing of good cause. Discovery is a two-step process. First, defendant must file a motion supported by declarations showing good cause for discovery and materiality to the pending case. [Citation.] This court has held that the good cause requirement embodies a relatively low threshold for discovery and the supporting declaration may include allegations based on information and belief. [Citation.] Once the defense has established good cause, the court is required to conduct an in camera review of the records to determine what, if any, information should be disclosed to the defense. (Evid. Code,  1045, subd. (b).) The statutory scheme balances two directly conflicting interests: the peace officers claim to confidentiality and the defendants compelling interest in all information pertinent to the defense. [Citation.] (People v. Samuels (2005) 36 Cal.4th 96, 109.)

The good cause showing under Evidence Code section 1043 requires a specific factual scenario establishing a plausible factual foundation for the allegations of police misconduct. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85, 86.) [A] plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1026, italics added.)

Ultimately, whether a motion to discover police personnel records has been supported by an affidavit sufficient to show good cause and materiality . . . is a factual determination made by the court in its sound discretion. [Citation.] (City of Los Angeles v. Superior Court (Davenport) (2002) 96 Cal.App.4th 255, 260, disapproved on other grounds by Garcia v. Superior Court (2007) 42 Cal.4th 63, 77.) Even if the trial court erroneously denies a Pitchess motion, reversal is not required unless the defendant can demonstrate prejudice. (See People v. Samuels, supra, 36 Cal.4th at p. 110 [even if the trial court erred because defendant made a showing of good cause in support of his [Pitchess] request . . . , such error was harmless [under Watson]^[3]]; People v. Memro (1985)38 Cal.3d 658, 684 [It is settled that an accused must demonstrate that prejudice resulted from a trial courts error in denying discovery.].)

2. Trial court did not err by denying continuance and allowing testimony of police officers.

Armenta contends the trial court erred by refusing to either grant a continuance to allow for belated Pitchess discovery, or preclude the police officers testimony. This claim is meritless.

Armenta argues the trial court was wrong to fault the defense because they had not raised the issue sooner. The defense was following the order of the court who ruled on the [pretrial] motion. At that time the judge specifically stated that the issue was not ripe until one of those officers takes the stand and testifies a certain way, then theres an allegation they committed misconduct by conforming their testimony . . . to the statements of officer Barillas . . .  As soon as that happened the defense objected to the testimony on Pitchess grounds. We are not persuaded.

  The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion. . . .  [Citation.] (People v. Fudge (1994) 7 Cal.4th 1075, 1105-1106.) A continuance will be granted for good cause ( 1050, subd. (e)), and the trial court has broad discretion to grant or deny the request. [Citations.] In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. [Citations.] (People v. Frye (1998) 18 Cal.4th 894, 1012-1013.) A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.)

The trial court here did not abuse its discretion by refusing to either grant a continuance or exclude the witnesses. Stopping the trial to allow Pitchess discovery would have required overruling the judge who had made the pretrial ruling (see People v. Riva (2003) 112 Cal.App.4th 981, 991 [as a general rule one trial judge cannot reconsider and overrule an order of another trial judge]; In re Alberto (2002) 102 Cal.App.4th 421, 427 [power of one judge to vacate an order made by another judge is limited]), and due diligence had not been demonstrated because the issue could have been litigated prior to trial (see Hill v. Superior Court (1974) 10 Cal.3d 812, 823 [writ of mandate issued to reverse pretrial denial of motion to discover prosecution witness rap sheet]; Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 156 [writ seeking review of pretrial Pitchess denial decided on the merits]).

Moreover, it appears Armenta never sought Pitchess discovery from any officer other than Barillas, so even if this claim had been meritorious Armenta would not have benefitted from it.

3. Pretrial Pitchess motion warranted in camera review by trial court.

Fuqua contends the trial court erred by limiting her pretrial Pitchess discovery to Officer Barillas, on the theory he alone had written the arrest report. This claim has merit.

Relying on California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, the Attorney General argues Fuquas Pitchess motion failed to demonstrate good cause for the discovery of information relating to any officer other than Barillas: The fact that Officer Barillas was the sole author of the arrest report was never questioned. Thus, appellant Fuqua asserted that Officer Barillas filed a report alleging falsities about her behavior that was a complete fabrication. Nowhere in the motion does appellant Fuqua allege any other officer made a false statement, planted any evidence, wrote a false report, or engaged in any misconduct of any type or kind. But the Attorney General is wrong in thinking California Highway Patrol v. Superior Court controls the outcome of this case.

Luis Luna, the real party in interest in California Highway Patrol v. Superior Court, was arrested for driving under the influence after police discovered his abandoned and damaged BMW on the highway. A police report written by Officer McCain said he had Luna in the back of his patrol car while waiting for a tow truck to arrive. When Luna began bleeding (presumably from injuries he had sustained when he crashed the BMW), Officer Pinedo attempted to render aid, but Luna became violent. Thereafter, Officer Conley and two other officers assisted McCain and Pinedo in subduing Luna.

Lunas Pitchess motion asserted the credibility of all five officers would be at issue, that the officers had used excessive force, and that an independent witness would testify Luna did not become violent until after the officers first used excessive force. The Court of Appeal held Luna had shown good cause to discover excessive force information as to all five officers, and dishonesty information as to McCain, but not dishonesty information as to Conley: Defendant has not claimed that Officer Conley prepared a false police report concerning his arrest, nor did his motions set forth a specific factual scenario to support an allegation of any kind of misconduct on Officer Conleys part other than excessive force. (California Highway Patrol v. Superior Court, supra, 84 Cal.App.4th at p. 1023.)

Hence, Luna failed to show good cause as to Conleys alleged dishonesty because Conleys only input into McCains police report had nothing to do with Lunas claim of police misconduct. That is, according to McCains report Conley identified defendant as the driver of the white BMW, interviewed him and reported to Officer McCain that defendant had told her he had been drinking. (California Highway Patrol v. Superior Court, supra, 84 Cal.App.4th at p. at p. 1015.) Luna was not contesting the truth of this part of McCains report, but rather the part saying the officers used force to subdue Luna only after he had become violent. Conleys alleged role in the contested events involved excessive force, not dishonesty.

Here, on the other hand, Barillas had written in his police report that Officers Saragueta, Diaz, Vizcarra, and Detective Kanchanamongkol stated they observed the hand to hand narcotics transaction between . . . Armenta, Fuqua, Brown, and me, and that during the operation he had been wearing a one way transmitter that was being monitored by Detectives Green, Mossman, Kanchanamongkol, and Ruize. Hence, Barillass report indicated he received input from other officers who had seen or heard evidence of Fuquas role in the drug transaction.^[4] This conclusion is confirmed by Detective Ruizes testimony that, during a post-arrest debriefing, the other officers observations were discussed and the information incorporated into Barillass arrest report.

Because we find the trial court erred by partially denying Fuquas pretrial Pitchess motion without the required in camera review, we will reverse her judgment of conviction and order a conditional remand to resolve the issue of prejudice. In People v. Hustead (1999) 74 Cal.App.4th 410 . . . , the court fashioned reasonable directions for the trial court under these circumstances, and we follow that model. . . . Accordingly, we further hold that on remand: (1) the trial court must conduct an in camera inspection of the requested personnel records for relevance; (2) if the trial courts inspection on remand reveals no relevant information, the trial court must reinstate the judgment of conviction; and (3) if the inspection reveals relevant information, the trial court must order disclosure to defendant, allow defendant 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. Johnson (2004) 118 Cal.App.4th 292, 296.)

DISPOSITION

The judgment is affirmed in part and reversed in part. The judgment as to defendant Armenta is affirmed. The judgment as to defendant Fuqua is reversed and her case is remanded with directions. On remand, the trial court is to conduct an in camera review of the requested personnel records for relevance, consistent with this opinion. If that review reveals no relevant information, the trial court shall reinstate Fuquas original judgment and sentence. If that review reveals relevant information, the trial court must order disclosure, allow Fuqua 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.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] Brown was a codefendant of Armenta and Fuqua at trial but he did not appeal.

^[3]People v. Watson (1956) 46 Cal.2d 818.

^[4] Fuquas Pitchess motion highlighted these parts of Barillass report: Defendant Fuqua maintains that the aforementioned arrest report is false as it relates to any involvement by her in a narcotics transaction. Defendant maintains that the incident allegedly monitored and/or reported by Officer Barillas, Detective Green, Detective Mossman, Detective Kanchanamongkol, and Detective Ruize is a complete fabrication as to the possession or sale of narcotics by defendant Fuqua. Defendant further maintains that Officers Saragueta, Diaz, Vizcarra, and Detective Kanchanamongkol have falsely reported the observation of any hand to hand narcotics transaction between defendant Fuqua and any other persons.