Fear Not Law Articles: P. v. Callahan

P. v. Callahan

Filed 5/20/08 P. v. Callahan CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

KENNETH CALLAHAN,

Defendant and Appellant.

B197683

(Los Angeles County Super. Ct.

No. NA070115)

APPEAL from a judgment of the Superior Court of Los Angeles County, James B. Pierce, Judge. Affirmed as modified.

Law Office of Gene Vorobyov and Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________________

A jury found defendant Kenneth Callahan guilty of possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a). In a separate proceeding, the jury found defendant served three prior prison terms (Pen. Code, 667.5, subd. (b)) and had suffered two prior convictions under the three strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). On the prosecutions motion, the trial court dismissed one prior strike conviction for purpose of sentencing. The court imposed a seven-year state prison sentence consisting of the middle term of two years, doubled as a result of the remaining strike prior conviction, plus one year for each of the three prior prison terms.

In his timely appeal, defendant (1) requests this court to conduct an independent review of the sealed portion of the record pertaining to discovery of personnel records of an officer under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to determine whether the trial court erroneously withheld discoverable information from the defense, and (2) contends the trial court failed to award sufficient custody credits. As we explain, our independent review discloses no abuse of discretion under Pitchess. We, however, conclude defendant was entitled to one additional day of custody credits.

STATEMENT OF FACTS

We state the facts briefly in the light most favorable to the judgment. (People v. Maury (2003) 30 Cal.4th 342, 396.) A police officer observed defendant engage in conduct consistent with narcotics activity. After defendant was detained, the officer recovered two pieces of rock cocaine, weighing .53 grams, from defendants jacket pocket.

Defendants Pitchess Motion and the Trial Courts Ruling

Defendant filed a Pitchess motion requesting material from the personnel files of two officers concerning complaints of using excessive force, fabricating evidence, and filing false reports, based on counsels declaration that the officer who recovered the cocaine did not find any contraband when he first searched defendant, but uncovered the cocaine after speaking to a second officer. Counsel also declared that the first officer broke defendants hand at the arrest scene. The trial court denied the motion as to the second officer but granted the motion as to the officer who recovered the contraband and ordered an in camera review of the officers personnel documents from the past five years concerning fabricating evidence and filing false reports.^{^[1]}

After conducting an in camera review of the documents presented by the custodian of records, the trial court found no discoverable material to be turned over to the defense. Defendant, who is not privy to the sealed transcript of the in camera hearing, requests this court conduct an independent review of the sealed portion of the record. Pursuant to that request, we must determine whether the trial court abused its discretion and erroneously withheld discoverable information from the defense.

A criminal defendant is entitled to discovery of officer personnel records if the information contained in the records is relevant to his ability to defend against the charge. (Pitchess, supra, 11 Cal.3d at pp. 537-538.) Later enacted legislation implementing the courts rule permitting discovery (Pen. Code, 832.5, 832.7, 832.8; Evid. Code, 1043-1047) balanced the accuseds need for disclosure of relevant information against a law enforcement officers legitimate expectation of privacy in his or her personnel records. A defendant, by written motion, may obtain information contained in a police officers personnel records if it is material to the facts of the case. (Evid. Code, 1043, subd. (b)(3).) When presented with such a motion, the trial court rules as to whether there is good cause for disclosure. (Id., 1043, 1045.) If the court orders disclosure, the custodian of the officers records brings to court all the potentially relevant personnel records, and in camera, the trial court determines whether any part of the record is to be disclosed to the defense. A trial courts ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330; see also Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086 (Haggerty), citing People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Gill (1997) 60 Cal.App.4th 743, 749.)

We ordered the trial court to provide us with the sealed documents it reviewed in conducting its Pitchess analysis. Having obtained those documents, we have reviewed them, along with the sealed transcript of the in camera hearing. The hearing transcript contains an adequate record of the courts review and analysis of the documents provided to it. It reveals no abuse of discretion. (People v. Myers (2007) 148 Cal.App.4th 546, 553, citing People v. Mooc (2001) 26 Cal.4th 1216, 1228.)

Custody Credits

Defendant received credit for 309 days of actual time in custody, plus 154 days of good time credits for a total of 463 days. He contends that he was entitled to one additional day of actual time in custody under Penal Code section 2900.5, subdivision (a). The Attorney General concedes the credits were miscalculated but argues defendant can only raise the error in the trial court. (Pen. Code, 1237.1; see, e.g., People v. Walton (1996) 42 Cal.App.4th 1004, 1020 [When, as here, a party has failed to object to a custody credit error in the trial court, the custody credit error is de minimis, the sentence is lengthy, and other issues dominate the appealwe shall not entertain an issue of custody credit error.], overruled on another ground in People v. Cromer (2001) 254 Cal.4th 889, 901, fn. 3.)

As we have held, however, Penal Code section 1237.1 only applies when the sole issue raised on appeal involves a criminal defendants contention that there was a miscalculation of presentence credits. In other words, [Penal Code] section 1237.1 does not require a motion be filed in the trial court as a precondition to litigating the amount of presentence credits when there are other issues raised on direct appeal. (People v. Acosta (1996) 48 Cal.App.4th 411, 420.)

We therefore reach the custodial credits issue and find the award was in errordefendant should have received 310 days of actual custody credits plus 154 days of conduct credits for a total of 464 days. The additional day of custody credit does not affect defendants right to conduct credit under Penal Code section 4019 (defendant entitled to two days conduct credit for each four days served).

DISPOSITION

The judgment is affirmed, subject to the modification that defendant is to receive 310 days of actual custody credits plus 154 days of conduct credits for a total of 464 days.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

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^{^[1]} Defendant does not challenge the trial courts ruling as to the second officer or to the exclusion of excessive force documentation as to the first officer.

Description	A jury found defendant Kenneth Callahan guilty of possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a). In a separate proceeding, the jury found defendant served three prior prison terms (Pen. Code, 667.5, subd. (b)) and had suffered two prior convictions under the three strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). On the prosecutions motion, the trial court dismissed one prior strike conviction for purpose of sentencing. The court imposed a seven-year state prison sentence consisting of the middle term of two years, doubled as a result of the remaining strike prior conviction, plus one year for each of the three prior prison terms. In his timely appeal, defendant (1) requests this court to conduct an independent review of the sealed portion of the record pertaining to discovery of personnel records of an officer under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to determine whether the trial court erroneously withheld discoverable information from the defense, and (2) contends the trial court failed to award sufficient custody credits. As Court explain, our independent review discloses no abuse of discretion under Pitchess. Court, however, conclude defendant was entitled to one additional day of custody credits.
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