P. v. Day

Filed 6/27/08 P. v. Day CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, John S. Fisher, Judge. Conditionally reversed with directions.

Judy Fridkis, 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, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Ana R. Duarte, Deputy Attorney General, for Plaintiff and Respondent.

________________________________________

Tommie Day appeals from the judgment entered following a jury trial in which he was convicted of sale of cocaine base and his admission that he had suffered a prior conviction on which he served a prison term. Defendant contends that his Pitchess^[1]motion was erroneously denied and that he was improperly convicted of an uncharged crime. We conclude that defendant was not improperly convicted of an uncharged crime but conditionally reverse the judgment and remand for further proceedings under Pitchess.

BACKGROUND

In the early evening of December 29, 2006, Los Angeles Police Officer Noreen Herbert, who was in plain clothes working in a narcotics detail, saw Michael Sanders near the intersection of Vineland Avenue and Oxnard Street. Herbert asked Sanders if he knew where she could get $20 worth of drugs. Sanders said he could get rock (vernacular for cocaine base) and told Herbert to wait while he made a telephone call. Herbert waited while Sanders went to the rear of a nearby laundromat. When Sanders returned, he asked Herbert if she would give him some money for drugs. Herbert said she had an extra $10, which Sanders could use to buy drugs for himself. Sanders then went to the rear of the laundromat a second time. When Sanders returned, he was accompanied by Alejo Aguirre. Aguirre asked Herbert how much she wanted and Herbert responded that she wanted $30 worth. Aguirre next made two telephone calls, following which he asked Herbert for the money. Herbert gave Aguirre $30 in prerecorded bills. Aguirre told Sanders and Herbert to wait.

Defendant soon approached Aguirre. The two were observed exchanging unknown items with each other. About the same time, Wilfredo Soto approached defendant and extended money to him. Defendant said, Thats too much. I dont have that much. Thereafter, Aguirre handed Herbert what was stipulated to be .25 grams of cocaine in the form of cocaine base.

Defendant and Aguirre were soon arrested. When defendant was searched, the prerecorded bills that Herbert had given to Aguirre were found in defendants pants pocket.

Defendant testified on his own behalf. He denied he had engaged in a narcotics transaction, explaining that Aguirre owed him money and called to tell defendant to come to a certain location and collect it. Defendant, who was at a friends house nearby, went to that location. Defendant shook Aguirres hand and Aguirre paid defendant the money that was owed. Soto also testified for the defense, denying that he had approached anyone with money or asked for drugs.

DISCUSSION

1. Pitchess Motion

In Warrick v. Superior Court (2005) 35 Cal.4th 1011 at page 1016, the Supreme Court discussed the requirements for a Pitchess motion: On a showing of good cause a criminal defendant is entitled to discovery of relevant documents or information in the personnel records of a police officer accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both materiality to the subject matter of the pending litigation and a reasonable belief that the agency has the type of information sought. [Citation.] A showing of good cause is measured by relatively relaxed standards that serve to insure the production for trial court review of all potentially relevant documents. [Citation.] (Fn. omitted.)

Addressing the question of [w]hat degree or quantity of justification must the moving party offer to establish a plausible factual foundation for the claim of officer misconduct, the Warrick court conclude[d] that 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. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial. Such a showing put[s] the court on notice that the specified officer misconduct will likely be an issue at trial. [Citation.] Once that burden is met, the defendant has shown materiality . . . . (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1025, 1026.)

Before the start of trial in this case, defendant filed a Pitchess motion seeking discovery of the personnel records of Officer Herbert as to accusations of excessive force, bias, dishonesty, coercive conduct or acts constituting a violation of the statutory or constitutional rights of others. (Fns. omitted.) In the motion, defendant set forth the facts of his arrest and asserted that Herbert had planted evidence in the past and was not credible. In opposition, counsel for the Los Angeles Police Department custodian of records (the LAPD) cited People v. Thompson (2006) 141 Cal.App.4th 1312 (Thompson) and argued that defendant had failed to provide a sufficient scenario of misconduct with respect to Officer Herbert to warrant an in camera hearing under Pitchess.

At the hearing on the motion, the court asked defendant if he could narrow down his request. Defendant stated he was looking for dishonesty, false police reports, perjury, planting of evidence type situations. Defendant next proffered two factual assertions that he asked to be added to the allegations of his written Pitchess motion. The first was that Aguirre owed money to defendant and had contacted defendant about coming to collect it. Thus, argued defendant, the position taken by police witnesses that there had been an exchange between defendant and Aguirre was not correct. The second assertion was that Soto had not approached defendant to buy drugs. (As noted above, both of these assertions were later presented at trial as part of the defense.)

The court stated that the LAPD could have additional time to respond to these new assertions. The LAPD did not ask for additional time and argued the motion referring to the new assertions, urging that defendants claim of collecting a debt was inconsistent with evidence of the exchange that was observed between defendant and Aguirre.

Following argument, the court denied the Pitchess motion. In so doing, the court explained that in this particular case based on the offer of proof and the scenarios that Im considering . . . I dont think the defense has said enough to get past the logic of the Thompson case.

Defendant contends that his Pitchess motion was erroneously denied. We agree.

In Thompson, the defendant was arrested for selling drugs to an undercover officer. In support of the defendants Pitchess motion, [a] declaration from defense counsel stated that the officers did not recover any buy money from the defendant, nor did the defendant offer and sell drugs to the undercover officer. The officers saw defendant and arrested him because he was in an area where they were doing arrests. When defendant was stopped by the police and once they realized he had a prior criminal history they fabricated the alleged events and used narcotics already in their possession and attributed these drugs to the defendant. The charges are a fabrication manufactured by the officers to avoid any type of liability for their mishandling of the situation and to punish the defendant for being in the wrong area, at the wrong time and for having a prior criminal history. . . . (Thompson, supra, 141 Cal.App.4th at p. 1317.)

The Thompson court held this showing [to be] insufficient because it is not internally consistent or complete. We do not reject Thompsons explanation because it lacked credibility, but because it does not present a factual account of the scope of the alleged police misconduct, and does not explain his own actions in a manner that adequately supports his defense. Thompson, through counsel, denied he was in possession of cocaine or received $10 from [the undercover officer]. But he does not state a nonculpable explanation for his presence in an area where drugs were being sold, sufficiently present a factual basis for being singled out by the police, or assert any mishandling of the situation prior to his detention and arrest. Counsels declaration simply denied the elements of the offense charged. (Thompson, supra, 141 Cal.App.4th at p. 1317.)

Here, although the showing in defendants Pitchess motion was likely insufficient under Thompson at the time the motion was filed, the additional assertions that were considered at the hearing provided a nonculpable explanation for defendants presence in the area as well as a reason he might have been incorrectly perceived to have exchanged items with Aguirre. A plausible scenario of misconduct was thus presented under Warrick v. Superior Court, supra, 35 Cal.4th 1011, and an in camera hearing should have been ordered to determine the existence of any discoverable information with respect to Officer Herbert. Accordingly, we shall remand the matter for an in camera hearing during which time the trial court can examine information brought before it and order disclosed to defendant any complaints against Officer Herbert, as limited by defendant at the hearing on his motion, of Herberts dishonesty, writing false police reports, perjury, or planting of evidence. (See People v. Hustead (1999) 74 Cal.App.4th 410, 419423.)

2. Conviction of Sale of Cocaine

Defendant was charged by information with sale of cocaine base in violation of Health and Safety Code section 11352, subdivision (a),^[2]and at trial counsel stipulated that the substance handed to Officer Herbert was cocaine base. Thereafter, the jury was instructed that the substance involved was cocaine under section 11352, and by verdict defendant was found guilty of the sale of cocaine under section 11352. Ultimately, defendant was sentenced to the upper term of five years for sale of cocaine base under section 11352, subdivision (a).

Defendant contends that because the jury instruction and the verdict form referred to the substance as cocaine rather than cocaine base, he was improperly convicted of a crime that was not charged and was not supported by the evidence. We disagree.

Section 11054, subdivision (f)(1) lists [c]ocaine base as a schedule I controlled substance. Section 11055, subdivision (b)(6), lists as a schedule II controlled substance [c]ocaine, except as specified in Section 11054. It is established that a defendant charged with and convicted of possession of rock cocaine (cocaine base) is entitled to reversal of that conviction where the evidence demonstrates only possession of powder cocaine (cocaine hydrochloride). (People v. Adams (1990) 220 Cal.App.3d 680, 683, 687688.) But the evidence here, as stipulated by counsel, established sale of cocaine base as charged in the information. Accordingly, any error in failing to direct the jurys attention to that variance was harmless under the facts of this case. (See People v. Maury (2003) 30 Cal.4th 342, 427.)

DISPOSITION

The judgment is conditionally reversed and the cause is remanded with directions to the trial court to conduct an in camera hearing on defendants discovery motion consistent with this opinion and applicable statutory provisions, making a record in accordance with the procedures set forth in People v. Mooc (2001) 26 Cal.4th 1216, 12271230. If the hearing reveals no discoverable information, the trial court shall reinstate the original judgment. If the in camera hearing reveals discoverable information, the trial court shall grant discovery, allow defendant an opportunity to demonstrate prejudice, and order a new trial if prejudice is demonstrated. If prejudice is not demonstrated, the trial court shall reinstate the original judgment.

MALLANO, P. J.

We concur:

VOGEL, J.

NEIDORF, J.^*

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^[1]Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

^[2]Further section references are to the Health and Safety Code.

Section 11352 provides: (a) Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for three, four, or five years.

(b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years.

^*Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.