P. v. Dumbrique

Filed 4/17/06 P. v. Dumbrique CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Andrew C. Kauffman, Judge. Reversed and remanded.

Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

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Christopher Dumbrique appeals from the judgment entered upon his conviction by jury of possession for sale of cocaine base (Health & Saf. Code, § 11351.5), with findings by the trial court that he had sustained a prior felony conviction within the meaning of the three strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and a prior felony conviction for which he served a prison term (Pen. Code, § 667.5, subd. (b)). He was sentenced to 10 years in prison.

Appellant contends that (1) the trial court erroneously limited the types of complaints it reviewed in camera pursuant to his Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531); and (2) that the minute order should be corrected to reflect the restitution fine actually imposed. In addition, he asks that we independently review the transcript of the in camera hearing held following his Pitchess motion.

We conditionally reverse with directions to the trial court to conduct an in camera hearing to review personnel records and, if the judgment is reinstated, to correct the minute order and abstract of judgment.

FACTS

The evidence established that at approximately 8:30 p.m. on July 1, 2004, Los Angeles County Sheriff's Detectives Curt Messerschmidt and William Pickett were conducting a surveillance at a vacant lot in an area of the county known for narcotics sales. As they sat in their unmarked vehicle, they watched as an individual approached a Volkswagen that was parked 50 to 60 yards from their car. Appellant emerged from the driver's seat of the Volkswagen. The individual appeared to give paper money to appellant, and appellant placed a small object in the person's hand. The individual left, and appellant returned to the Volkswagen, leaving the driver's door open.

Five or six minutes later, another person approached the Volkswagen. Appellant got out, the person appeared to hand him money, and he gave an object to the person. The detectives observed one or two more such transactions in the ensuing 15 minutes. Each time, the conversation between appellant and the individual who approached the car lasted approximately five to 10 seconds, according to Messerschmidt, or 15 to 20 seconds, according to Pickett. The detectives were not using binoculars. Other people and other cars were in the parking lot within 10 feet of appellant's car.

Messerschmidt and Pickett drove up to the passenger side of the Volkswagen. The driver's side door immediately closed, and appellant leaned towards the passenger seat, bent over, and reached towards the floor. The detectives got out of their vehicle and ordered appellant and a woman who was in the passenger seat to show their hands. The woman complied, but they had to repeat the order to appellant before he straightened up and obeyed. The woman got out of the car, and Messerschmidt, who detained her, saw a clear plastic baggie containing two off-white rock-like substances that resembled rock cocaine on the passenger side floorboard. Messerschmidt told Pickett what he had seen and Pickett recovered the baggie. The two rocks inside the baggie were later determined to contain a total of .40 grams of a substance containing cocaine base.

Pickett placed appellant in the back seat of the patrol vehicle. Appellant spontaneously stated, â€