P. v. Navarro
Filed 1/26/09 P. v. Navarro 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, v. JOSE NAVARRO, Defendant and Appellant. | B204146 (Los Angeles County Super. Ct. No. BA318222) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel B. Feldstern, Judge. Affirmed with modifications.
Jean Lin, 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, Jason Tran and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Jose Navarro, appeals from his convictions for evading an officer with willful disregard for the safety of persons or property (Veh. Code, 2800.2) and unlawful taking of an automobile. (Veh. Code, 10851, subd. (a).) Defendant argues the trial court improperly denied a motion to compel disclosure of peace officer personnel records of Officer Rick Corpel. The Attorney General argues the trial court should have imposed two court security fees. We affirm with modifications.
We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On February 26, 2007, Veronika Geronimo parked and locked her green Honda Civic, license No. 4GGL904, at approximately 6 p.m. The car was missing the following morning when Ms. Geronimo went to where it had been parked. Ms. Geronimo did not give defendant or anyone permission to drive or take her car. When Ms. Geronimo got her Honda back, the ignition had been removed. At approximately 3:30 a.m. on March 3, 2007, Los Angeles Police Officers Edward Rubio and Matthew Calleros were in uniform riding in a marked black and white police car. Officer Rubio saw a green Honda Civic automobile quickly drive out of a gas station. The Honda suddenly came to a screeching stop when the driver saw the police car. The driver put the Honda in reverse and parked next to a gas pump. A woman got out of the Honda and went into the gas station market. Based on a check of license plate No. 4GGL904, Officer Rubios partner determined that the Honda was stolen.
Defendant, the driver of the Honda, stepped partially out of the Honda and looked in the officers direction. Immediately thereafter, defendant got back inside the car and fled at a high rate of speed. The gas station was well lit. The two officers got a clear, unobstructed view of defendant when he was outside the Honda. Officer Rubio immediately activated his emergency lights and siren and commenced a pursuit. Officer Calleros broadcast a request for a backup air unit. Defendant then: turned right; failed to stop for a stop sign; turned right again; failed to stop for another stop sign; narrowly avoided hitting a car at the next intersection, where he failed to stop for a stop sign; turned right again; failed to stop at another stop sign; turned left; failed to stop for a stop sign; turned right; and turned off the lights on his car. Thereafter, the officers lost sight of defendant. During the pursuit, defendant drove approximately 50 to 60 miles per hour through a residential neighborhood. Shortly thereafter, Officer Rubio saw defendant driving the Honda. Defendants headlights were off. Other officers in the area as well as an air unit were advised of defendants last known whereabouts. Shortly thereafter, Officer Rubio spotted the green Honda parked at the curb in a residential neighborhood. No one was inside the car.
Officer Calleros broadcast the following description of defendant: male Hispanic; crew cut; five feet eight inches tall; mid twenties; and wearing a white T-shirt and blue jeans. Immediately thereafter, Officer Calleros heard a broadcast that another officer had observed a suspect matching that description. Officers Jeff Mares and Corpel arrived. After receiving a description of the suspect, the officers drove to the vicinity. Officer Mares saw a man walking toward the patrol car. The man wore a with T-shirt and blue jeans. Officer Mares car came within 15 to 18 feet of the man. Officer Mares directed the man to stop. Officer Mares opened his car door. Then the man looked in his direction then ran away. Officer Mares identified defendant at trial as the man who ran away. Defendant was carrying a dark red duffle bag. Officer Mares chased defendant. Officer Mares yelled: Stop. Stop running.
As officer Mares was chasing defendant, Officer Corpel backed the police car up and drove toward Templeton Street. Officer Corpel saw a thin Hispanic male wearing a white T-shirt and blue jeans run inside a motor home at the rear of 5309 Templeton Street. Officer Corpel notified the airship of the location. A perimeter was established. Approximately two hours later, one of the police units broadcast a public address announcement. Two Latinos got out of a trailer parked in a driveway. Shortly thereafter, two more Latinos and a Latina came out of the motor home. Defendant was amongst the second group. Officer Rubio recognized defendant immediately. Defendant had changed his clothing. Officer Mares recognized defendant as the man who had fled. Defendant was arrested and driven to the police station. A search of the yard where the motor home was situated revealed a .45 caliber spent cartridge. An impound search of the stolen green Honda by Officer Ramon Arguelles revealed a container of rifle ammunition and loaded magazines. The cartridge found in the yard where the motor home was located was subsequently matched to the ammunition found in the stolen Honda.
Defendants sole argument on appeal is that the trial court improperly denied his motion to compel disclosure of the peace officer personnel records for Officer Corpel. (Evid. Code, 1045, subd. (b); Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019; People v. Mooc (2001) 26 Cal.4th 1216, 1232; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535-540.) Our Supreme Court has explained that the declaration accompanying the motion must set forth a specific factual scenario to support assertions of impropriety: [Evidence Code] section 1043 . . . , subdivision (a) requires a written motion and notice to the governmental agency which has custody of the records sought, and subdivision (b) provides that such motion shall include, inter alia, (2) A description of the type of records or information sought; and [] (3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that such governmental agency identified has such records or information from such records. (City of Santa Cruzv. Municipal Court (1989) 49 Cal.3d 74, 81-83; see also Alford v. Superior Court (2003) 29 Cal.4th 1033, 1038; City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 9; City of San Josev.Superior Court (1998) 67 Cal.App.4th 1135, 1148-1149.) In Warrick, the Supreme Court further held that the moving party must show a plausible scenario of officer misconduct and how the information sought could lead to or be evidence potentially admissible at trial. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1026; see Hurd v. Superior Court (2006) 144 Cal.App.4th 1100, 1111-1112; People v. Collins (2004) 115 Cal.App.4th 137, 151.) An officers personnel records are not relevant to any issue without such a showing. (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1020; People v. Collins, supra, 115 Cal.App.4th at p. 151.) We review the trial courts ruling denying a disclosure request for an abuse of discretion. (Pitchess v.Superior Court, supra, 11 Cal.3d at p. 535; see also Alford v. Superior Court, supra, 29 Cal.4th at p. 1039; People v.Memro (1985) 38 Cal.3d 658, 684.)
In this case, defendant filed a motion for the pretrial discovery of the personnel records of Officers Rubio, Calleros, Mares, and Corpel. The motion requested materials relating to: (1) All 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 against officer(s) RUBIO[], CALLEROS[], MARES[] & CORPEL. [] . . . [] (3) Any other material which is exculpatory or impeaching within the meaning of Brady v. Maryland (1963) 373 U.S. 83.
Defense counsels declaration in support of the motion included reference to the attached police report and the statement: During this entire incident [defendant] was present with friends in the motorhome that he was arrested at. [] Further in direct contradiction to the report, at no time on March 3, 2007 did [defendant] ever drive a Honda Accord. At no time did [defendant] evade police. At no time did officer Mares find heroin on [defendant]. [Defendant] was not walking S/B Warrick on the east sidewalk wearing a white t-shirt and blue jeans. At no time during the time a perimeter was established did [defendant] enter a white motorhome located to the rear of 5309 Templeton Ave. The report, which was the basis of the order denying the motion, merely indicated Officer Corpel saw a male enter the motorhome. The report never states that Officer Corpel identified defendant.
At the hearing on the motion, the trial court granted the motion as to the records of Officers Rubio, Calleros and Mares. The trial court had initially denied the motion as to Officers Mares and Corpel, noting: Had there been any facts that [Officers Mares and Corpel] either identified the defendant as the person that entered the motor home or if there were some facts from the defense that no one entered the motor home during the period of time, then I would have granted it as to those two also, but thats not there. The trial court then acknowledged that Officer Mares had conducted the patdown search of defendant. Defense counsel argued that the arrest report indicated that Officers Mares and Corpel observed a male dressed in a white t-shirt and blue jeans. Further, the report indicated the two officers ordered him to stop he ran and entered a white motor home. In denying the motion as to Officer Corpel, the trial court ruled: All that [Corpel] saw was someone wearing that type of clothing get in the motor home. He hasnt said its your client. Theres nothing in the declaration that says no one entered the motor home during that period of time.
Defendant argues that his declaration aptly met the Warrick standard for establishing that discovery of information regarding Officer Corpel was material. Defendant further argues that Officer Corpels role in the pursuit provided an essential link between the chase and the arrest. As our Supreme Court reiterated in Garcia v. Superior Court (2007) 42 Cal.4th 63, 71: We discussed what constitutes a good cause showing of materiality in Warrick v. Superior Court[, supra,] 35 Cal.4th 1011. The supporting affidavit must propose a defense or defenses to the pending charges. (Id.at p. 1024.) To show the requested information is material, a defendant is required to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officers version of events. (Id.at p. 1021.) . . . [] Counsels affidavit must also describe a factual scenario that would support a defense claim of officer misconduct. ([People v.] Warrick, supra, 35 Cal.4th at pp. 1024-1025.) . . . In other cases, the trial court hearing a Pitchess motion will have before it defense counsels affidavit, and in addition a police report, witness statements, or other pertinent documents. The court then determines whether defendants averments, [v]iewed in conjunction with the police reports and any other documents, suffice to establish a plausible factual foundation for the alleged officer misconduct and to articulate a valid theory as to how the information sought might be admissible at trial. (Id. at p. 1025.) (Garcia v. Superior Court, supra, 42 Cal.4th at p. 71.) Here, defense counsels declaration, when viewed in conjunction with other documents, did not establish a plausible factual foundation for officer misconduct. The trial court did not abuse its discretion in denying the motion to compel disclosure of Officer Corpels peace officer personnel records. Finally, the issue was not raised after Officer Corpel testified at trial.
Defendant requests that we review the sealed transcripts prepared in connection with the motion to compel disclosure of peace officer personnel records. We have reviewed the transcripts to determine if the trial court abused its discretion in denying additional disclosure. No abuse of discretion occurred with respect to the trial courts refusal to disclose additional information regarding the personnel files of Officers Rubio, Calleros, and Mares. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Samayoa (1997) 15 Cal.4th 795, 827.)
Finally, following our request for further briefing, the parties agree that the trial court improperly imposed a $200 section 1465.8, subdivision (a)(1) court security fee and should have imposed two $20 court security fees. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
The judgment is modified to strike the $200 Penal Code section 1465.8, subdivision (a)(1) court security fee and to impose two section 1465.8, subdivision (a)(1) court security fees. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
MOSK, J.
KRIEGLER, J.
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