P. v. Collins
Filed 4/2/08 P. v. Collins CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, Plaintiff and Respondent, v. EDGAR MAC COLLINS, Defendant and Appellant. | C054692 (Super. Ct. No. CM025049) |
Defendant Edgar Mac Collins filed a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) before trial and the trial court held an in camera hearing to determine whether there had been past allegations that Deputy William Olive, one of the officers involved in defendants arrest, planted evidence on those he arrested. After reviewing the files provided by the custodian of records, the court concluded there was nothing subject to disclosure.
On appeal, defendant asks us to conduct an independent review of the sealed records regarding his Pitchess motion. (See Evid. Code, 1043.) We have done so and affirm the judgment.
Facts and Proceedings
While on routine patrol, Sheriffs Deputy Patrick McNelis observed a Chevy Blazer with the top removed and the rear license plate covered by the vehicles tailgate. Defendant, a passenger in the back seat, was standing up while the vehicle was moving. While he followed the Blazer, McNelis noted that its driver made a left hand turn without signaling.
McNelis stopped the Blazer. Defendant identified himself and said he was on parole. McNelis told defendant to get out of the Blazer and to place his hands behind his back for a parole search. Defendant at first complied, but before McNelis could conduct a search, defendant pushed backwards, hit McNeliss hand and ran off. McNelis yelled at defendant to stop and, when he did not, chased defendant on foot. He caught up with defendant and attempted to grab him, but defendant hit McNeliss arm and continued running. When defendant attempted to jump over a fence, McNelis fired his taser, hitting defendant in the back. Defendant fell to the ground, but immediately got up and continued running. McNelis fired his taser several more times during the chase with no lasting effect.
Although McNelis eventually caught up with defendant and sprayed him in the face with pepper spray, this too failed to stop defendants flight. Finally, McNelis tackled defendant and, after a struggle, was able to handcuff the defendant even though defendant continued to yell and to struggle to stand up.
When other officers arrived, McNelis walked over to the sidewalk to wash the pepper spray out of his own eyes and to attend to his injuries while Deputy Olive searched the defendant. McNelis walked back over to where the defendant was lying on the ground, and Olive showed him items he had taken from defendant, including a baggie containing a substance which tested presumptively positive for heroin, all of which were lying on the ground next to defendant.
When medical staff arrived to treat injuries to both McNelis and defendant, defendant continued to be uncooperative, yelling and screaming and refusing to follow directions. Officers restrained defendant using a body wrap, placed him in an ambulance and took him to the hospital.
Charged with possession of a controlled substance (Health and Saf. Code, 11350, subd. (a)) and resisting arrest (Pen. Code, 69), defendant filed several pretrial motions, including a Pitchess motion requesting discovery of complaints against Olive for racial prejudice, use of excessive force and planting of evidence. The trial court denied defendants request as to racial prejudice and excessive force, but granted the motion as to complaints regarding planting or fabrication of evidence reasoning that neither McNelis nor anyone else saw Olive conduct the search. After the court held an in camera hearing and reviewed the documentation provided by the custodian of records, the court decided Olives file contained nothing discoverable.
Thereafter the jury found defendant guilty of possession of a controlled substance (Health & Saf. Code, 11350, subd. (a)) and guilty of resisting arrest (Pen. Code, 148). The trial court found that defendant had been convicted of certain offenses three times in the past within the meaning of Penal Code section 667.5, subdivision (b) and sentenced defendant to the upper term of three years as to count 1, consecutive one-year terms for each of the three prior convictions, and a concurrent one-year term for count 2, for an aggregate term of six years in state prison. Defendant was ordered to pay specified fees and fines.
Discussion
As noted earlier, defendant asks us to examine the sealed records of the trial courts hearing on his Pitchess motion to obtain discovery of the personnel records of Deputy Olive. (People v. Mooc (2001) 26 Cal.4th 1216, 1225.)
A trial courts ruling on a Pitchess discovery motion will not be disturbed absent a showing of an abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) The court informed defendant after the hearing that it had not found anything discoverable. Having reviewed the sealed records, we find that the court did not abuse its discretion. The records contain nothing bearing on defendants claim.
We do note, however, that the abstract of judgment does not reflect the sentence as it relates to count 2. Under our inherent power to correct clerical errors to conform the record to the true facts (People v. Schultz (1965) 238 Cal.App.2d 804, 807; People v. Flores (1960) 177 Cal.App.2d 610, 613), we direct the trial court to amend the abstract to include the concurrent one-year term as to count 2.
Disposition
The judgment is affirmed. The trial court shall prepare an amended abstract of judgment as directed in this opinion and forward the amended abstract to the Department of Corrections and Rehabilitation.
HULL, J.
We concur:
DAVIS, Acting P.J.
NICHOLSON , J.
Publication Courtesy of California lawyer directory.
Analysis and review provided by Escondido Property line Lawyers.
