P. v. Gomez
Filed 1/31/14 P. v. Gomez
CA2/8
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opinion has not been certified for publication or ordered published for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 EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
RALPH GOMEZ,
Defendant and Appellant.
B244057
(Los
Angeles County
Super. Ct. No. BA370794)
APPEAL from a
judgment of the Superior Court of Los
Angeles County. Laura F. Priver,
Judge. Affirmed in part, reversed in
part and remanded with directions.
Sylvia
Whatley Beckham, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Victoria B. Wilson and Brendan Sullivan, Deputy Attorneys
General, for Plaintiff and Respondent.
______________________________
Ralph Gomez appeals from a judgment
which sentences him to seven years in state prison for transportation of heroin
and cocaine base for sale. Gomez
challenges various trial court evidentiary
rulings, each of which we find meritless.
We further find the trial court did not err when it failed to stay the
sentence for transportation of cocaine base under Penal Code section 654. However, we find the trial court abused its
discretion when it denied Gomez’s motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (
judgment and remand with directions. The
judgment is otherwise affirmed.
FACTS
Gomez
was charged with transportation of heroin (count 1), possession of heroin for
sale (count 2), transportation of cocaine base (count 3) and possession of
cocaine base for sale (count 4). (Health
& Safety Code, §§ 11352, subd. (a), 11351, 11351.5.) It was further alleged that Gomez suffered
four prior convictions pursuant to Penal Code section 667.5, subdivision (b)
and was previously convicted of possession of narcotics pursuant to Health and
Safety Code section 11370.2, subdivision (a).
Gomez was also alleged to have suffered a prior strike pursuant to Penal
Code sections 1170.12, subdivisions (a) through (d) and section 667,
subdivisions (b) through (i).
At
trial, the prosecution presented evidence that Gomez was found in possession of
black tar heroin and cocaine base. Los
Angeles Police Department (LAPD) Detective Arturo Koenig, the supervisor in
charge of the Northeast Narcotics division, testified he was in an unmarked car
when he noticed a blue Pontiac go through a red light while making a right-hand turn in violation
of Vehicle Code section 21453, subdivision (b). Detective Koenig asked for assistance in
making a traffic stop and notified his team that he was going to follow the
car. He followed the car into a
supermarket parking lot. The car stopped
and Detective Koenig identified Gomez as the driver. Detective Koenig had not seen Gomez before
nor had he had any contact with him.
As
Detective Koenig continued to observe Gomez, he noticed a Hispanic male walking
towards Gomez’s car. The man, who was
identified at trial as Hermino Ramirez, had a short conversation with Gomez
through the car window. Gomez then
reached across the seat of his car and opened the passenger door. Ramirez got into the car while taking money
from his right front pants pocket.
When
the other officers arrived on the scene, Detective Koenig asked them to detain
the two men in the car because he believed a possible drug deal was
occurring. Detective Koenig had made drug-related
arrests in the past in that parking lot because transients would often use the
money they received from the nearby recycling center to buy narcotics. Detective Koenig also felt Ramirez acted
suspiciously because his head was looking left and right while he walked to
Gomez’s car and retrieved money from his pocket.
Officers
searched Gomez and his car after he told them he was on parole for a prior
narcotics conviction, a condition of which was that he voluntarily consent to search
and seizure. Detective Victor Cadena
searched Gomez’s wallet and found a baggie of heroin and $264 inside. A digital scale and $248 was also found in a
backpack in the car.
Detective
Koenig requested a narcotics sniffing dog to continue the search for hidden
narcotics. After circling around the
car, the canine indicated something was in the front wheel well. When the officer opened the hood, he found a
sock containing a plastic blue M&M container with 40 balloons of heroin and
a bag of cocaine. Gomez was arrested on
suspicion of transportation of narcotics and possession of narcotics for
sale. His car was impounded.
Gomez
represented himself at trial with standby counsel present. His defense was that Detective Koenig and the
other police officers planted the narcotics in the car in retaliation for a
prior arrest that resulted in a dismissal of the charges. In the previous arrest, Gomez was found with
over 70 bags of heroin and $900. Gomez
recovered the money that had been seized plus interest. Under Gomez’s theory, the officers felt he
had evaded justice and planted some of the heroin from the previous arrest on
him.
Gomez
testified that he had just come from lunch at a nearby McDonald’s and was
planning to drop off cans at the recycling center. He parked next to a tree near the recycling
center and waited until his favorite Fleetwood Mac song finished. Ramirez, whom Gomez knew from the
neighborhood, came up to the car and got in to ask him to drive him and his
family home. At that point, Gomez
noticed that Detective Koenig was parked to his left and watching him. Gomez said, “Oh, it’s him again.†Gomez testified that about a month prior to
this incident, he had two altercations with Detective Koenig at the nearby
McDonald’s.
Gomez
was ordered out of the car by the officers.
When Officer Gonzalez pulled a bindle out of Gomez’s wallet, he had a
smile on his face; Gomez then realized that he planted the evidence because
“they couldn’t get me no other way . . .†Gomez was escorted to the back of the police
car with Ramirez. He noticed Detective Koenig
conducted a search of his car, pulling out panels and the dash board.
The
canine handler then put the dog in the front and back seat of the car and
walked him around the car. The dog handler
threw a towel about 30 feet away and the dog fetched the towel three
times. During the last round of fetch, Detective
Koenig and Officer Zachary Jordan opened the hood while out of Gomez’s line of
vision. When Gomez saw them again, they
had a white sock and he realized they had planted those drugs as well.
Gomez
admitted he was a heroin addict, but testified he had been very careful about
using drugs because he kept running into Detective Koenig and Officer Jordan. He denied having drugs in his wallet or
under the hood of his car that day.
Gomez
also presented testimony from Dr. Richard Polsky, an expert on animal behavior
including drug detecting dogs. Polsky opined
that a dog handler can intentionally or unintentionally provide cues to the dog
through the manner in which he or she handles the leash. He also testified that drug detection dogs can
make mistakes.
The
jury returned a guilty verdict as to all four counts. The prior conviction and prior prison term
allegations were found true by the court in a separate bench trial. The court denied a motion for new trial. Gomez was sentenced to seven years in state
prison, representing the midterm of four years for transportation of heroin (count 1) plus three years for enhancement
for the prior narcotics conviction. The
trial court also sentenced Gomez to the midterm of four years for
transportation of cocaine base (count 3) to be served concurrently. It stayed the prison terms for the remaining
counts pursuant to Penal Code section 654 and struck the prior prison term
enhancements. Gomez timely
appealed.
DISCUSSION
I. Pitchess Motion
Gomez
contends the trial court erred in denying his Pitchess motion. We
agree.
A. The Proceedings
Below
Gomez
filed a Pitchess motion for discovery
of the personnel files of the officers involved in his arrest—Koenig, Jordan,
Gonzalez, Cadena, Thompson, and Bedolla.
He sought “[a]ll complaints from any and all sources relating to
acts of aggressive behavior, violence, excessive force, or attempted violence
or excessive, racial bias, gender bias, ethnic bias, sexual orientation bias,
coercive conduct, violation of constitutional rights, fabrication of charges[,]
fabrication of evidence, fabrication of reasonable suspicion and/or probable
cause illegal search/seizure; false arrest, perjury[,] dishonesty, writing of
false police reports[,] writing of false police reports to cover up the use of
excessive force[,] planting of evidence, false or misleading internal reports
including [] but not limited to false overtime or medical reports, and any
other evidence of misconduct amounting to moral turpitude within the meaning of
People v. Wheeler (1992) 4 Cal.4th
284 [(Wheeler)].â€
In
support of his motion, Gomez submitted his own signed declaration under penalty
of perjury. He attested that he was
arrested in 2009 by Officer Jordan on similar drug-related charges and those
charges were later dismissed. After the
dismissal, Gomez attempted to retrieve his personal property, which had been
booked into evidence, from the Northeast Los
Angeles police station. Jordan
advised him he needed a court order to retrieve his property. When he returned with the order, Jordan
advised Gomez the property had been destroyed.
Gomez then asked to speak to a supervisor and was required to fax the
court order over to the supervisor three times before she informed him that his
property had been destroyed. Gomez
advised the supervisor that he would begin civil litigation.
Two
months later, Gomez was arrested in this case.
He was driving the same car he drove when previously arrested. Although Gomez admits he is a heroin addict, he
realized he “had just recently been released on similar charges and [he] was
extremely cautious in [his] travels in the same car as prior arrest and . . . was
very concerned about retribution due to [the] confrontation with officer ‘Jordan
and Lt. Jane Doe.’ â€
Gomez
accused the officers of acting to fabricate evidence and commit perjury at the
preliminary hearing. Gomez said Officer
Jordan lied when he denied having any prior contact with him. Gomez heard Jordan
tell the other officers, “That’s him.†He questioned
the truthfulness of Detective Koenig’s testimony that he called for a narcotics
investigation while he was following Gomez’s car after a mere traffic
infraction. Gomez also denied taking the
route Officer Koenig recounted. Gomez said Officer Cadena was not the officer
who removed Gomez’s wallet from his pocket nor was Officer Carlos Bedolla the one
who recovered the sock.
At
the hearing, Gomez argued that the officers conspired to use the heroin and
scale seized from him during the 2009 arrest to implicate him in this
arrest. The trial court denied Gomez’
request to allow him to add these facts to his declaration.
The
trial court ruled that Gomez did not articulate a specific and plausible
factual scenario to justify an in-camera review of the officer personnel
records for possible discovery. Gomez’s
two subsequent motions for reconsideration were denied.
Demonstrated Good Cause for an In-Camera Hearing
A
criminal defendant is entitled to discovery of relevant documents or
information in the confidential personnel records of a peace officer accused of
misconduct against the defendant upon a showing of good cause. (Evid. Code, § 1043, subd. (b)(3).) 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.†(
(1989) 49 Cal.3d 74, 84.) A defendant is
entitled to discover relevant information under Pitchess even in the absence of any judicial determination that the
potential defense is credible or persuasive. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016, 1026 (
“If
the defendant establishes good cause, the court must review the requested
records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and
limitations [citation], ‘the trial court should then disclose to the defendant “such
information [that] is relevant to the subject matter involved in the pending
litigation.†’ [Citations.]†(People
v. Gaines (2009) 46 Cal.4th 172, 179.)
A showing of good cause is measured by “relatively relaxed standardsâ€
that serve to “ ‘insure the production’ †for trial court review of “ ‘all
potentially relevant documents.’ †(
to discover personnel records for abuse of discretion. (See People
v. Samayoa (1997) 15 Cal.4th 795, 827.)
In
Warrick, the California Supreme Court
held that good cause may be established if the allegations are specific,
factual, and unambiguous. (
Plausibility is satisfied if a defendant
“demonstrate[s] that the scenario of alleged officer misconduct could or might
have occurredâ€; the allegations need not be “reasonably probable or apparently
credible.†(Ibid.) Moreover, “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.†(Id. at p. 1026.) “The trial
court does not determine whether a defendant’s version of events, with or
without corroborating collateral evidence, is persuasive — a task . . .
tantamount to determining whether the defendant is probably innocent or
probably guilty.†(Ibid.)
We
find Gomez met this relatively low threshold by presenting a plausible factual
scenario that supports his defense claim of retribution and false
evidence. Gomez explained why he was
targeted by the police, how the officers could have planted the drugs, and
where the officers got the drugs and paraphernalia to plant on him. He accounted for not only his actions,
but also for Ramirez’s and the police officers’ actions. Whether Gomez’s version of events is credible
is irrelevant; it is internally consistent and supports a defense to the
charges. We conclude the trial court
abused its discretion by denying the Pitchess
motion without conducting an in camera review of the records requested.
Cal.App.4th 1312 (Thompson), relied
upon by the Attorney General, is distinguishable. In that case, the police reported the
defendant sold narcotics to an undercover officer as several other police
officers watched the transaction. (Id.
at pp. 1315, 1317.) In his
involvement in the narcotics transaction and asserted the police arrested him
because he was in an area where the police were making other arrests for drug
sales. (Id. at p. 1317.) The Court
of Appeal found the defendant did not show good cause for discovery of police
personnel records regarding dishonesty, planting evidence and other misconduct
because the factual scenario he presented did not explain why he was in an area
where drugs were being sold or what he was doing prior to his arrest which led
to his “being singled out by the police.†(Id.
at pp. 1317-1318.) Unlike Gomez, the
defendant in Thompson failed to “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.
Counsel’s declaration simply denied the
elements of the offense charged.†(
In
reaching this conclusion, we note that Gomez has not established good cause to discover all of the documents he requests.
His request was far too overbroad.
For example, his allegation that the officers planted evidence does not
support discovery of complaints for excessive violence. There was no contention that the officers
used excessive force during the arrest. Contrary
to the Attorney General’s contention, however, this is not fatal to Gomez’s
request. In Warrick, the California Supreme Court was faced with a similarly
overbroad Pitchess motion. During the course of its analysis, the high
court narrowed the subjects of discovery solely to those which correlated with
the allegations in the defendant’s motion. (Warrick,
supra, 35 Cal.4th at p. 1027; see also People
v. Jackson (1996) 13 Cal.4th 1164, 1220 [overbroad discovery request is
properly narrowed by the trial court to misconduct similar to that alleged].) We do so as well.
According
to Gomez’s declaration, Detective Koenig fabricated a traffic violation. During the detention, Officer Gonzalez, not Officer
Cadena, removed his wallet and planted the bindle of heroin in it. Detective Koenig and Officer Jordan then
planted the M&M container in his car and Officer Thompson “almost
simultaneously†planted the digital scale in the backpack in the trunk of his
car. Officers Gonzalez and Bedolla lied
at the preliminary hearing. We thus find
Gomez is entitled to an in camera review by the trial court of Detective Koenig
and Officers Jordan, Gonzalez and Thompson’s personnel records relating to
fabrication of evidence, perjury, and
planting of evidence only. The trial
court should also review Detective Koenig’s records for complaints related to
fabrication of reasonable suspicion and probable cause. As to Officers Cadena and Bedolla, there is no
indication from Gomez that they planted any evidence, only that they committed
perjury. Accordingly, Gomez is entitled
an in camera review of their personnel records relating to perjury only.
The
remaining categories sought in Gomez’s Pitchess
motion are “completely untethered either to the factual scenario or to the
proposed defenses outlined in [the] declaration[,]†(Warrick, supra, 35 Cal.4th at p. 1022), including the request for discovery
of conduct constituting moral turpitude. Although the honesty of the officers is at
issue here, Gomez’s request for “any other evidence of misconduct amounting to
moral turpitude within the meaning of [Wheeler,
supra,4 Cal.4th 284]â€
name="_ftnref1" title="">[1]
was overbroad. This is because
cause requirement of the Evidence Code, and “only documentation of past officer
misconduct which is similar to the
misconduct alleged by defendant in the pending litigation is relevant and therefore
subject to discovery.†(
abrogate the good cause requirement . . . by permitting
fishing expeditions into the arresting officers’ personnel records in virtually
every criminal caseâ€].)
The
remedy for a Pitchess error is a
conditional and remand of the case to the trial court to conduct an in camera
hearing. (People v. Gaines, supra, 46 Cal.4th 172, 180.) If, after reviewing the confidential material
in chambers, it is found the personnel records contain no relevant information,
the court is to reinstate the judgment. (Id.
at p. 181.) If, however, it is
found on remand discoverable information exists and should have been disclosed,
the trial court must order disclosure of that information, allow the 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. (Ibid.)
II.
Motion
Gomez
next contends the trial court abused its discretion when it failed to rule on
his Brady motion, which sought information
related to the disposition of the property seized during his arrest in
2009. We disagree.
“‘Pursuant
to Brady, supra, 373 U.S. 83,
the prosecution must disclose material exculpatory evidence whether the
defendant makes a specific request (id.
at p. 87 . . . ), a general request, or none at all . . .’
(In re Brown (1998) 17 Cal.4th 873,
879.) ‘For Brady purposes, evidence
is favorable if it helps the defense or hurts the prosecution, as by impeaching
a prosecution witness. [Citations.] Evidence is material if there is a reasonable
probability its disclosure would have altered the trial result. [Citation.] Materiality includes consideration of the
effect of the nondisclosure on defense investigations and trial strategies. [Citations.] Because a constitutional violation occurs only
if the suppressed evidence was material by these standards, a finding that
without need for further harmless-error review. [Citation.]’ (Citations.)†(People
v. Verdugo (2010) 50 Cal.4th 263, 279.)
The
record is less than clear and somewhat incomplete on this issue, but as best we
can discern, it shows Gomez made multiple unsuccessful attempts to discover the
disposition records of the items seized during his arrest in 2009. Prior to the preliminary hearing, Gomez
served a subpoena duces tecum on the custodian of records for the LAPD seeking
“[r]ecord [sic] of destruction of 2 cell
phones and 1 digital scale which was booked into evidence on February 25, 2009
DR. #09 11 07556 and which transferred to Narcotics group at Central Division
from Northeast LAPD division property room.
Request copy of property disposition form 10.06.00 and any item detail
summary report that may have been filled out for property disposal or
destruction. Copy of records by property
disposition coordinator authorizing such destruction of above property.†The City Attorney moved to quash the
subpoena.
the LAPD, which the City Attorney again moved to quash. That motion was granted.
Next,
Gomez filed a “motion for discovery†seeking various daily worksheets and daily
reports; it did not request information regarding the seized items. Gomez repeated his request for these
worksheets and reports in a “motion to compel constitutionally mandated
discovery.†Both motions were denied by
Judge Lisa Lench. Gomez served the LAPD
with three subpoenas duces tecum, including one requesting “[a]ll APINS record
for property booked into evidence under DR#09-11-07556 per
LAPM Manual Sec. 501.10. and legible copy of long term sign out for above property.†At the hearing on the motion to quash, Judge
Patricia Schnegg quashed all three subpoenas and admonished Gomez not to direct
any more subpoenas to the LAPD or his pro per status would be revoked.
Gomez
then filed a “motion for constitutional mandated discovery Brady Material†requesting, among other things, documents relating
to the disposition of the property seized during his 2009 arrest. In a hearing before Judge George G. Lomeli
regarding the parties’ readiness for trial, Gomez requested “some brief
discovery.†Judge Lomeli questioned
the prosecutor about Gomez’s request.
“The Court: Has all discovery been turned over?
[The Prosecutor]: I have received no discovery from Mr.
Gomez. All the discovery that I have, I
have turned over to him.
The Court: Okay.
The Defendant: But I’m not asking for the discovery that she
has submitted. The Brady material evidence that may be favorable.
The Court: Is there any Brady material?
[The Prosecutor]: No, your honor, and I have an ongoing duty to
turn that over, and whatever I have, I’ve turned over.
The Defendant: Your honor, I gave the people’s
representative on the 22nd a copy of the Brady
material.
The Court: I have that copy here as well, sir, but if
they represent to this court that there is no existing Brady material, the record is what it is.
The Defendant: But what I’m asking for, your honor, is the
work assignment sheet, vehicle assignment sheets and the watch commander’s
logs, which I gave her a copy. I have
copies here as exhibits, and I gave—attached them to the motion. That’s what I’m asking for. There’s nine officers and they all had
call—had communications.
The Court: How is that relevant, sir?
The Defendant: That’s relevant because who called in what
and at what time and for what so I can identify the people.
The Court: I’m going to declare you ready, sir. Matter is sent to Department 130. Judge Ryan.â€
In
Department 130 later that day, the prosecutor confirmed to Judge William C.
Ryan that there was no additional Brady information
required to be disclosed. Gomez asserted
that Judge Lomeli never ruled on his Brady
motion. Judge Ryan noted, “Well,
it’s my understanding that Judge Lomeli, because I spoke to him by phone a moment
ago, said that [the prosecutor] had represented that everything they had was
turned over. They don’t have
anything else.†Gomez responded that the
motion is “not for things that they have†and listed the reports and logs that
he had sought previously. Later, Judge
Ryan discussed the issue with Judge Lench and reported to the parties.
“The Court: Okay. Now, the motion for
was discussed in the trial court, and they said they don’t have anything else
to turn over.
The Defendant: Well, I hadn’t filed it then at that time
because I didn’t have copies to file it.
The Court: It says you showed it to him. I talked to Judge Lench so that’s been dealt
with. There’s no additional information.
The Defendant: There was no ruling on that at that time, your
honor.
[The prosecutor]: Well, that’s what she told me it was, and
it’s been handled.
The Court: Right. You have no additional information.â€
The
court minutes for that day indicate the motion to compel discovery was
previously ruled upon.
Gomez
argues Judge Ryan failed to rule on his motion because he believed the matter
had already been decided by Judge Lench.
According to Gomez, Judge Ryan’s failure to rule on the motion is an
abuse of discretion and the proper remedy on appeal is remand with directions
for the trial court to exercise its discretion on his discovery motion. (See People
v. Orabuena (2004) 116 Cal.App.4th 84, 99 [when trial court fails to
exercise discretion because it believed it lacked authority to do so, the
appropriate relief on appeal is to remand so the trial court may exercise its
discretion] and People v. Massie (1967)
66 Cal.2d 899, 917-918 [trial court erred when it refused to exercise its
discretion on defendant’s motion for separate trial]; Kahn v. Lasorda’s Dugout, Inc. (2003) 109 Cal.App.4th 1118.)
Because
we conclude Judge Lomeli impliedly denied the Brady motion, we need not reach the issue of whether Judge Ryan
abused his discretion by failing to rule on the issue. The record shows Gomez sought additional time
from Judge Lomeli for “some brief discovery†and explained that he was “not
asking for the discovery that [the prosecutor] has submitted.†Instead, he was asking for “the work
assignment sheet, vehicle assignment sheets and the watch commander’s logs[,]â€
which were relevant to “identify the people.â€
It is apparent Judge Lomeli did not agree with Gomez regarding the
relevance of his Brady request when
he refused to grant him the additional time, reminding him that “this case is
almost a year old.†Judge Lomeli
concluded that there was no additional Brady
material to be disclosed, based on the prosecutor’s statement. He also apparently explained this to Judge
Ryan later in the day. Therefore, Judge
Ryan properly denied Gomez’s renewed motion for the discovery and there was no failure
to rule on Gomez’s Brady motion.
III. Evidentiary
Rulings
Gomez
further argues the judgment must be reversed because the trial court excluded certain
pieces of evidence. In addition to the
facts surrounding his 2009 arrest and the subsequent dismissal of the charges,
Gomez also “wanted to show both his diligent efforts to recover his property,
and the deliberate withholding of the administrative records of the disposition
of the property [seized in the 2009 arrest.]†We find no error.
Gomez
testified the evidence was planted on him.
However, he challenges the court’s orders relating to (1) a motion in
limine to admit evidence of the prior arrest, the subsequent dismissal and his
attempts to recover his property; (2) trial testimony regarding the prior
arrest; (3) testimony from Hank Cousine regarding Detective Koenig’s arrest of
him;(4) the parole search of Gomez’s residence; (5) expert testimony regarding police
procedure; and (6) a new trial motion.
We
review a trial court’s ruling on the admissibility of the evidence for abuse of
discretion. (People v. Riggs (2008) 44 Cal.4th 248, 289.)
A. Evidence Regarding Previous Arrest
At
a March 27,
2012 pre-trial hearing, Gomez presented a
motion in limine to admit evidence purporting to support his defense theory of
retaliation and false evidence. The
trial court asked Gomez to clarify what evidence he sought to admit. Gomez explained he wanted to present evidence
that: he was detained in the parking lot
of his motel in 2009; Jordan was part of the team that searched his motel room
and found 73 balloons of heroin along with $900, two cell phones and a digital
scale; after his case was dismissed, he had a confrontation with Jordan when he
sought to recover his money and property; although he eventually recovered his
money plus interest, Gomez was advised his remaining property, including the
cell phones and the scale, had been destroyed; he made diligent efforts to
recover those items and to discover, in this case, the disposition records
showing the destruction of his property; he filed a civil suit in federal court
against Jordan and other officers. Because Jordan
was also a member of the search team at the time of his arrest in the instant
matter, Gomez sought to link him to the 2009 arrest to show this prosecution
was merely conducted in retaliation.
The
prosecutor argued that Gomez’s arrest in 2009 was irrelevant to the case
here. The officers identified by Gomez
who were involved in both incidents were either in the narcotics unit or the
special problems unit, and thus would be involved with any investigation in
that area. The prosecutor stated that Jordan,
in particular, was called in as backup to conduct the search in 2009 after
Gomez was arrested. He did not meet
Gomez or know who Gomez was. He arrived
on scene after Gomez had already been taken into custody. In 2010, Jordan
was not the arresting officer but, again, was called in afterwards to lead the
investigation and book the evidence, although he did see Gomez at this
arrest. The prosecutor further specified
that Jordan had nothing to do with the return of the money, including how it
was returned or what happened to it. She
also questioned Jordon regarding whether he recognized Gomez. Jordon responded that he did not remember
Gomez and did not realize it was him at the time of the 2010 arrest.
The
trial court denied Gomez’s request to present evidence regarding what happened
to the property following the 2009 arrest.
It found that the evidence would prejudice Gomez and “[c]ompared to its
probative value, I also think that there is not a sufficient link to show that
the property destruction or your inability to get the property back can be
attributed to the officers in this case if you want to make it look []
dishonest and untruthful because of that previous success you had on the other
case, but you haven’t shown the court a sufficient link in order to do
that.â€
At
trial, Gomez twice renewed his request to question Jordan
regarding the prior arrest and the seizure of cash and heroin. Gomez asserted that he had witnesses at the
scene that would testify that Jordan
said, “He got away last time but we got ‘em this time.†The trial court denied his request under Evidence
Code section 352, finding that it would consume jury time and was purely
speculative. The trial court again
explained, “There is absolutely no evidence this officer had anything to do
with the destruction of the property [or] that he even knew you or in his own
head connected you to that other arrest and in fact I think the evidence is the
opposite. He doesn’t recognize you from
any prior contact.â€
Gomez
attempted to testify about the 2009 arrest, his attempt to recover his
property, and the civil suit he had filed against the officers in federal
court. In particular, Gomez testified
that at the time of the detention, Koenig said to him, “You thought you got
away last time.†That testimony was
stricken upon the prosecutor’s motion. The
prosecutor’s objections to each of these statements were also sustained by the
trial court.
In
a related motion, the prosecutor sought to exclude evidence that the prior case
against Gomez was dismissed. The court
agreed that it was prejudicial to Gomez and irrelevant to the present case. The trial court also disallowed evidence regarding
Jordan’s participation in the prior arrest because it was irrelevant to
the present case. Later, the trial court
sustained the prosecution’s objections to Gomez’s examination of the arresting
officers, Koenig, Thompson and Bedolla.
Objections were sustained when Gomez asked Koenig whether he had ever
been sued or disciplined for misconduct.
The prosecutor’s objections were further sustained when Gomez asked
Thompson if he met Gomez at the police station in 2009 or whether Thompson was
aware Gomez was involved with drugs. Further
objections were sustained when Gomez asked Bedolla whether he had any
information about Gomez prior to this arrest and whether it was unusual to call
in narcotics officers for a traffic violation.
At
closing, the prosecutor argued that Gomez had failed to convincingly present
evidence that the drugs were planted. She
commented, “There is nothing so special or spectacular about Mr. Gomez that’s
going to make them waste all of their resources[,] at least 7 officers.†Gomez argues on appeal that the trial court’s
rulings allowed the prosecutor to emphasize the holes in his defense and
deprived him of the right to present a full defense.
We
find no abuse of discretion in the trial court’s rulings on the motion in
limine or on the evidentiary objections at trial. Time and time again, Gomez was unable to show
how the evidence he proferred would be relevant to the matter at hand. In particular, evidence of the 2009 arrest and
its subsequent dismissal was irrelevant to the current arrest since Gomez was
unable to link the officers of the 2009 arrest with the 2010 arrest in any
meaningful way. Although Jordan
was involved in both incidents, he never even saw Gomez in 2009, because Gomez
had already been taken into custody when he arrived on the scene. Moreover, there was no evidence that Koenig,
who initiated the detention in 2010, was involved in the 2009 arrest. A defendant must show something more than that
the arresting officers were the same as the ones in a previous arrest,
particularly when the arrests were close in time, in the same area and involved
the same illegal conduct. Neither was
Gomez able to link the arresting officers to the destruction of his
property. Gomez made no showing that any
of the officers participated in the disposition of the seized property.
on which Gomez relies, is distinguishable.
There, the defendant claimed he acted in self-defense, and he offered
evidence of third-party threats and the violent reputation of victim’s friends
and family to support the defense. The
trial court excluded the proffered evidence. The Supreme Court found the proferred evidence
to be relevant to the defendant’s self-defense claim. (Id.
at pp. 1061-1062.) As addressed above,
the evidence Gomez sought to admit was not relevant. Thus, the trial court did not err when it
excluded irrelevant evidence.
Additionally,
any nominal relevance of the evidence was outweighed by the danger of undue
prejudice, confusion of issues and consumption of time. We find the trial court reasonably concluded
that if evidence of the 2009 arrest was admitted, there was a probability that
the jurors would have used it for an illegitimate purpose — to infer that Gomez
deserved to be found guilty because he had been arrested for possession of 73
bags of heroin in 2009, but faced no consequences for his actions. Evidence may be excluded as unduly
prejudicial when it is of such nature as to motivate jurors to use the
information, not to logically evaluate the point upon which it is relevant, but
to reward or punish. (
439.) Moreover, the jury likely would
have been spent undue time focusing on the facts of the 2009 arrest and why the
case was dismissed rather than on the facts of this case. Further, evidence of Gomez’s attempts to
recover the seized property or discover the disposition records from the LAPD
would only have served to confuse the jury and waste its time. Undue time would have been consumed focusing on
LAPD administrative procedures and
record keeping, as well as the rules surrounding discovery in criminal
cases. The trial court properly
precluded Gomez from admitting this evidence.
of Hank Cousine
Gomez
next challenges the trial court’s exclusion of testimony by Hank Cousine, a former
LAPD officer who had previously accused Detective Koenig of misconduct. Gomez assured the trial court that Cousine
had personal knowledge that Detective Koenig planted drugs on a prior occasion.
At a 402 hearing, Cousine testified that
Koenig and another officer pulled him over when he was off duty in 1996 or 1997. Detective Koenig accused Cousine of being
belligerent and failing to obey instructions.
An internal investigation found Koenig’s accusations unfounded. Cousine subsequently filed a civil suit
against Detective Koenig.
The
trial court denied ruled the evidence inadmissible pursuant to Evidence Code
section 352, finding Cousine’s testimony had nothing to do with planting
drugs. We find no abuse of
discretion. Cousine’s testimony was
irrelevant, the incident was remote in time, and involved conduct unrelated to
planting evidence. Further, its nominal
probative value was far outweighed by undue consumption of jury time and
confusion of issues.
Parole Search
Gomez
next contends the trial court erred by failing to allow evidence about the parole
search of his home after his arrest. In
particular, Gomez claims he should have been able to admit evidence that the
officers searched his home for three hours, used a battering ram, handcuffed
his nephew and threatened him into making a statement. Further, Gomez sought to admit that the
search was not mentioned in the police report.
According to Gomez, it “goes to the credibility of these officers as a
material omission.†Again, we find no
abuse of discretion.
The
prosecutor did not admit any of the evidence seized from the search and sought
to exclude evidence of the search. The
trial court allowed Gomez to question the officers about whether a search was
conducted and what, if anything, was found.
However, he refused to allow any questions regarding the other details
of the search such as use of the battering ram and handcuffing Gomez’s nephew.
The
trial court properly limited the testimony on this issue. Gomez does not explain why the officers’ use
of a battering ram or handcuffing his nephew was relevant to his defense of
planting evidence, particularly when no evidence was found at the
residence. We also fail to see the
connection between the officers’ failure to include details of the search in
the police report and the defense of retaliation or fabrication of
evidence.
Expert Testimony
Believing
there was possible misconduct in the way the detention was conducted, Gomez
sought to present testimony from an expert on police conduct. Gomez advised the trial court that the expert
would testify that he had 30 years of law enforcement experience and would opine
that Gomez’s detention was a tactical investigation, it was improperly
conducted, and that omitting the parole search from the arrest report was
against policy and cause for finding misconduct. Based on this offer of proof, the trial court
denied Gomez’s request to call the expert.
Gomez contends that the trial court
erred in excluding the police expert’s testimony. We disagree.
Gomez failed to specify on what basis the expert could opine that his
detention was not a random incident, but a “tactical investigation.†Gomez failed to explain how the expert’s
testimony would support his defense theory that the officers planted the
evidence. Gomez also failed to link the
purported misconduct of omitting facts of the search from the police report
with the misconduct of planting drugs on a suspect. The trial court did not abuse its discretion
in excluding the expert’s testimony under Evidence Code section 352. The proposed testimony had little relevance
to the issues raised at trial and posed a high risk of confusing the jury and
consuming an undue amount of the jury’s time.
for New Trial
After
the jury returned its verdict, Gomez filed a motion for new trial, listing 19
separate errors made by the trial court. The trial court denied the motion. On appeal, Gomez asserts the following errors by
the trial court deprived him of his fundamental right to present a
defense: “The court’s pretrial rulings
excluding defense evidence; denial of a requested pinpoint instruction on defense
theory; sustaining the prosecutor’s relevance objections; deprivation of the
opportunity to cross-examine Officer Jordan on the 2009 events; deprivation of
the opportunity to cross-examine Detective Koenig and to present a witness
regarding the detective’s past discipline; denial of requests to cross-examine
Detective Koenig about the search of appellant’s residence; and exclusion of
opinion evidence from appellant’s police procedure expert.†These purported errors have been addressed above. We find none of these challenged rulings to
be abuses of discretion.
name="_ftnref5" title="">[5] As a result, the denial of the motion for new
trial is not an abuse of discretion. (
458, 526 [ruling on new trial motions reviewed for abuse of discretion].)
IV. Request for Judicial Notice
At
trial, Gomez asked the officer handling the canine whether she was familiar
with the type of M&M container found in his car and whether she considered
the container to be “air tight.†She
responded, “I’ve never done a scientific experiment to see if air comes out of
a container like that but to make an assumption I’m going to assume that air
can get out of a flimsy piece of plastic container.†She further testified that she believed a
canine could detect narcotics in the M&M container “because he did.†During a subsequent discussion outside the
presence of the jury regarding the scope of testimony from Gomez’s canine
expert, Gomez indicated he would elicit testimony regarding whether a canine
would alert to an air tight container.
When the trial court warned Gomez that there was no evidence the
container was air tight, he stated that Clarke had testified that water does
not come out of it so he believed it was air tight and water tight. When Gomez asked the canine expert if a drug
detection dog could detect a controlled substance placed in an air tight
container, the expert testified it would depend on a wide range of
variables.
During
Gomez’s cross-examination, the prosecutor asked him:
“Q Have you ever poured water in that
container, closed the top and see if any water comes out of that?
A Not in that or any one of those
containers.
Q Did you previously say in court today
that you tested that container to see if it’s air tight?
A If I did I misspoke but I assume it’s
air tight just by the way it snaps.
[The
prosecutor]: Ask the court to take
judicial notice earlier today Mr. Gomez said he tested that container, poured
water into it, closed the top and turned it over and no water spilled out.
The
court: All right.â€
Gomez
now argues that the trial court erred in taking judicial notice that he experimented
with the M&M container. Because
Gomez failed to object to the prosecutor’s request for judicial notice, he has
forfeited the issue on appeal. (Evid.
Code, § 353, subd. (a).) Gomez
acknowledges the forfeiture but urges this Court to excuse his failure to
object. We decline to do so.
V. Sentencing
Gomez
contends that the trial court erred when it sentenced him to separate prison
terms for count 1 (transportation of heroin) and for count 3 (transportation of
cocaine base) in violation of Penal Code section 654’s prohibition against
multiple punishment for the same conduct.
We find no sentencing error.
Section
654 bars multiple punishment where the convictions arise out of an indivisible
transaction and have a single intent and objective. (Neal v.
State of California (1960) 55 Cal.2d 11, 19; see also People v. Latimer (1993) 5 Cal.4th 1203, 1216.) Gomez contends the proper procedure is to
stay execution of sentence on one of the offenses. (People
v. Pearson (1986) 42 Cal.3d 351, 359-361.) Gomez relies on the Supreme Court’s holding in
In re Adams (1975) 14 Cal.3d 629,
635-636 (Adams). There, the high court struck down
multiple punishment for a defendant who had been caught transporting several
types of contraband in his vehicle. Reasoning
that the defendant entertained only the single objective of delivering the
narcotics to a cohort, the court found an “indivisible course of conduct . . .
which . . . results in the commission of a single punishable offense.†(Ibid.)
Gomez argues that
in this case – to sell illegal drugs, no matter how many individual types of
contraband he possessed for this purpose.
We disagree.
The conduct for which Gomez was
convicted is more analogous to that described in People v. Monarrez (1998) 66 Cal.App.4th 710 (Monarrez). There, the
defendant was convicted of possession of heroin for sale, possession of cocaine
for sale, and receiving stolen property. On appeal, the defendant asserted that the
trial court erred by imposing separate sentences for the drug offenses in
violation of Penal Code section 654. Relying
on People v. Barger (1974) 40 Cal.App.3d
662, 672 (Barger), the appellate court
concluded section 654 did not prevent multiple convictions for the same
conduct, only multiple punishment. In
punishments for possessing cocaine, Secobarbital, and marijuana, as well as for
possessing heroin for sale. Rejecting
defendant's contention that he had only the single objective of possessing
drugs to trade for automatic weapons, the court noted that California courts
had “uniformly†held that Penal Code section 654 “does not preclude multiple
punishment for simultaneous possession of various narcotic drugs.†(Ibid.)
The
Monarrez court held that
observing that Adams cited to
the court in Adams to find a single
illegal intent where the defendant’s sole act was to move a large quantity of
drugs from one place to another. Furthermore,
in Adams the evidence showed that defendant intended to deliver all of the
drugs to a single recipient.
found to possess more than one particular illegal drug, or possess it with the
intent to sell to a presumptively large number of buyers.†(Monarrez,
at p. 714.)
The
Monarrez court found that the trial
court did not commit error by imposing separate sentences for the drug
offenses. The court stated that section 654 did not preclude multiple
punishment for simultaneous possession of various narcotic drugs that were
seized during a single search. The court
concluded, “The evidence supported a finding that defendant had been engaged in
multiple sales and intended to make multiple sales of the narcotics which he
possessed. The narcotics are separately
classified and regulated by the Legislature; they have different effects and
pose different hazards to society. The
punishment imposed here was entirely fair.â€
(Monarrez, at p. 715.)
Likewise,
the evidence here supports a finding that Gomez transported heroin and cocaine
with the intent to make multiple sales. Koenig
testified that the single bag of heroin found in Gomez’s wallet indicated that
“he had one ready to go†to sell to Ramirez while the hidden cache of drugs was
intended for other sales. Koenig
believed that the digital scale recovered from Gomez’s backpack would likely be
used to weigh cocaine out for buyers because cocaine users wanted to verify the
amount of drugs they were buying. “Furthermore,
different drugs are directed at different buyers--in some cases, at different
classes of buyers--and represent different dangers to society. It would be absurd to hold that a
criminal who deals in one contraband substance can expand the scope of his
inventory without facing additional consequences.†(People
v. Menius (1994) 25 Cal.App.4th 1290, 1297.) Under the reasoning in Monarrez, the trial court did not err when it failed to stay the
sentence on count 3 under Penal Code section 654.
VI. Motion
to Suppress Evidence
Prior
to trial, Gomez moved to suppress the narcotics discovered during his detention,
arguing that his detention was illegal under the Fourth Amendment as the
circumstances did not justify a detention.
In a supplemental opening brief, Gomez reiterates that argument, and
contends the trial court erred in denying the motion to suppress. We find the motion was properly denied.
A
police officer is permitted to initiate an investigative stop or detention of
an individual without violating the Fourth Amendment when the officer has a
reasonable suspicion that criminal activity may occur. (See Terry
v. Ohio (1968) 392 U.S. 1, 30; and see, e.g., People v. Conway (1994) 25 Cal.App.4th 385, 388.) “In order to justify an investigative stop or
detention in a case such as this, the circumstances known or apparent to the
officer must include specific and articulable facts causing him to suspect that
(1) some activity relating to a crime has taken place, is occurring, or is
about to occur; and (2) the person he intends to stop or detain is involved in
that activity.†(People v. Jones (1991) 228 Cal.App.3d 519, 524 (
suspicion, it must be objectively reasonable for him to do so. (Ibid.) A court is allowed to employ commonsense
judgments and inferences about human behavior to determine whether reasonable
suspicion is present. (
at p. 388; People v. Letner and Tobin (2010)
50 Cal.4th 99, 146.) In reviewing a
trial court’s denial of a motion to suppress, “we uphold the trial court’s
factual findings if they are supported by substantial evidence, but
independently review its determination that the search did not violate the
Fourth Amendment.†(People v. Rogers (2009) 46 Cal.4th 1136, 1157.)
Detective
Koenig was an 18-year veteran with over 11 years experience in the narcotics
unit. He testified that he was driving in
an unmarked car when he observed Gomez failing to stop at a red light before he
made a right turn. Detective Koenig
requested a marked police car assist in conducting a traffic stop. As he waited for the other officers to
arrive, Detective Koenig followed Gomez’s car to a nearby supermarket parking
lot. He considered this parking lot to
be a high drug trafficking area because transients often turned in recyclables at
the nearby recycling center and used the money they received to buy
narcotics. Detective Koenig had
previously arrested individuals for drug sales in this area. Detective Koenig parked about 20 feet away and
watched Gomez sit in his car for two to three minutes without getting out. He then observed a Hispanic male walk up to
Gomez’s car while looking back and forth, with his head “on a swivel.†The man had a short conversation with Gomez
and then got into the passenger seat.
Before the car door closed, Detective Koenig saw the man remove money
from his pants pocket. Based on the
man’s actions and the location, Detective Koenig believed a drug transaction
was about to occur. When the other
officers arrived, Gomez and Ramirez were ordered out of the car. Gomez was told of his traffic violation and then
admitted he was subject to parole search.
Detective Koenig’s testimony was undisputed at the preliminary hearing.
Based
on the totality of the circumstances, Koenig and the other officers were
justified in conducting an investigative detention; they had specific, and
articulable facts which would cause a reasonable person to suspect that Gomez
was involved in a drug transaction.
Detective Koenig’s testimony showed: Gomez was sitting in a parking lot
in an area known for drug sales; he was approached by Ramirez, who was looking
around furtively as he walked towards Gomez’s car; and after a brief
discussion, Ramirez entered Gomez’s car while pulling out money. “The possibility of an innocent explanation
does not deprive the officer of the capacity to entertain a reasonable
suspicion of criminal conduct. Indeed,
the principal function of his [or her] investigation is to resolve that very
ambiguity and establish whether the activity is in fact legal or illegal . . . .â€
(In
re Tony C. (1978) 21 Cal.3d 888, 894.)
The
case law cited by Gomez does not compel a contrary conclusion. In each of the cases relied upon by Gomez, it
was held that mere presence in a high crime area or an exchange of money or
avoidance of police was insufficient to show reasonable suspicion. (People
v. Garry (2007) 156 Cal.App.4th 1100 [standing next to a parked car late at
night]; People v. Aldridge (1984) 35
Cal.3d 473, 479 [avoiding police in an area with continuous drug
transactions].) For example, in
suppress was affirmed on appeal. The Court
of Appeal held that the detention was illegal because the mere fact that the
defendant received money from another person in an area known for drug activity
did not justify the detention. (
distinguishable. In Jones, there was no furtive behavior, including waiting in a parked
car or being approached by an individual looking from side to side. These distinguishable circumstances, when
added to the fact that Gomez was in an area where drug sales were common and
that Ramirez was pulling money out of his pocket as he got into the car,
demonstrate reasonable suspicion existed to support a detention here.
DISPOSITION
The
judgment is conditionally reversed and remanded. The trial court shall conduct an in camera
review for discoverable material in the arresting officers’ personnel files
as specified in this opinion. If the
trial court’s inspection reveals no relevant information, the trial court must
reinstate the judgment of conviction and sentence. If the inspection reveals relevant
information, the trial court must order disclosure, allow Gomez 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. In all other respects, the
judgment is affirmed.
BIGELOW,
P. J.
We concur:
RUBIN, J.
GRIMES, J.
Wheeler, supra, 4 Cal.4th 284, the
California Supreme Court held that nonfelony conduct involving moral turpitude
is admissible to impeach a criminal witness.
