P. v. Perez

Filed 1/19/10 P. v. Perez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Marcelita V. Haynes, Judge. Affirmed in part, reversed in part, and remanded.

Tracy A. Rogers, 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, Assistant Attorney General, James William Bilderback II and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Jose Arguez Perez appeals from the judgment entered following his conviction by jury of selling cocaine base and possessing cocaine base for purposes of sale. (Health and Saf. Code, 11352, subd. (a), 11351.5.) He contends the trial court erred by failing to instruct the jury on the theory of aiding and abetting and by denying his Pitchess motion[1]without conducting an in camera hearing. We conditionally reverse the judgment in part and remand the matter to the trial court with directions.

STATEMENT OF FACTS

On June 4, 2008, Los Angeles Police Department Officer Michael Saragueta worked undercover as part of a narcotics buy team. Before he left the station that evening, he photocopied the money he would use to purchase drugs in order to record the serial numbers of the bills. Dressed in plain clothes and wearing a transmitting wire, Saragueta went to the Huntington Hotel in downtown Los Angeles while other officers on his team, equipped with listening devices, monitored Saraguetas activities.

When Saragueta arrived at the hotel, he contacted an individual by the name of Mace. Saragueta asked Mace if he was working, street vernacular for selling drugs. When Mace asked how much he wanted, Saragueta said a twenty, referring to $20 worth of rock cocaine.

After walking to the front of the hotel with Mace, Saragueta met with Mr. Rodriguez. Mace told Rodriguez that Saragueta wanted a twenty. After Rodriguez gave the officer a small rock of what appeared to be cocaine, he gave Rodriguez $20 in prerecorded bills (one $10 and two $5s). After acknowledging he had not given Saragueta $20 worth of cocaine, Rodriguez said he was going to go across the street to retrieve more drugs and asked Saragueta to wait. Rodriguez walked across the street and out of view.

Detective Anthony Jackson saw Rodriguez cross the street and walk into a parking lot where he met with defendant. The men stood near a black Ford Explorer (later determined to be registered to defendant) and engaged in a short conversation. Rodriguez handed an object to defendant, who reached down toward the front wheel well of the Explorer, stood up, and handed an item to Rodriguez. Rodriguez left the parking lot and walked directly back to Officer Saragueta.

When Rodriguez returned to Saraguetas location, he had one large rock resembling cocaine. He broke off two pieces from the large rock and handed them to Saragueta.

After Rodriguez left the lot, Jackson contacted Officer Isaac Martinez and told him to detain defendant. After stopping defendant, Martinez searched him and recovered $73 from his right rear pocket and $397 from his wallet.

Detective Dennis McNeal searched the right front wheel well of the Explorer and found a white tissue rolled into a ball. Inside of the tissue, he found a clear plastic baggie containing what appeared to be rock cocaine. Using a photocopy that had been taken of the buy money, Mc Neal examined the money Officer Martinez had recovered from defendant and discovered it contained the three prerecorded bills.

The parties stipulated that the white rocks Rodriguez handed to Officer Saragueta and the substance found in the wheel well of defendants Explorer were cocaine in the base form. Officer Saragueta testified that the latter cocaine was possessed for the purposes of sale.

DISCUSSION

I. The Trial Court Did Not Err by Failing to Give an Instruction on Aiding and Abetting

Defendant contends the trial court was required to provide the jury with an instruction on aiding and abetting. He claims the prosecutions theory was that defendant was one person in a production line that led to the sale to Officer Saragueta and was an aider and abettor in the sale of cocaine. We disagree.

While the court had an obligation to instruct on the general principles of law that were relevant to the evidence presented (People v. Najera (2008) 43 Cal.4th 1132, 1136), there is no question that the evidence established defendant was a direct participant in the sale, not an aider and abettor, and the prosecutor did not argue otherwise. In response to the defense argument that Mace and Rodriguez were the sellers, the prosecutor argued, But you heard the courts instruction that a person is also guilty of selling if they furnish. If they furnish the illegal substance to then be sold to the others. Its the Peoples position that the defendant sold it. Thats why he had the currency. . . . So clearly, he has sold drugs or participated even if the other two people are selling for him and hes furnishing it. An instruction on aiding and abetting was not required. (People v. Brown (2003) 31 Cal.4th 518, 559 [instruction is unnecessary when there was no suggestion that defendant was a mere aider and abettor].)

II. The Court Erred by Failing to Hold an In Camera Hearing on Defendants Pitchess Motion

Prior to trial, defendant filed a Pitchess motion, seeking accusations of misconduct against Officers Saragueta, Jackson, McCauley, Gonzalez, Williams, and Detective McNeal. In particular, as relevant here, he wanted complaints alleging the named officers made false arrests, fabricated or planted evidence, filed false police reports, or committed perjury.

In support of the motion, defendants attorney filed a declaration claiming that the aforementioned officers jointly prepared or subscribed to a false report that attributed criminal conduct to [defendant]. Counsel stated defendant was in the parking lot near the Huntington Hotel because he was planning to rent a room in the hotel. While at the parking lot, Rodriguez approached [defendant] and asked [him] for change. [Defendant] was not near the front area of the Ford Explorer at this time. [Defendant] did not hand anything to Rodriguez. . . . [Defendant] did not have any drugs on his person or near his car, let alone in the wheel well of his car.

At the hearing on defendants motion, the trial court was concerned that there was really no explanation of the $450 cash on the defendant. After reviewing the police report, the court noted that defendant was unemployed and had given the officers a home address and questioned why he would be checking into a hotel. The court denied the Pitchess motion, concluding that the declaration constituted little more than a denial of the charge because it failed to explain defendants presence in the area or provide the source of the money in his possession (which included the prerecorded bills).

Defendant contends he presented a sufficient factual scenario to warrant an incamerareview of the officers personnel files. He argues his declaration went far beyond a denial, offering in addition explanations of how and why [he] was in the parking lot and why Rodriguez approached him. Defendant claims that in denying the motion, the trial court engaged in an improper evaluation of the plausibility of his version of the events. We agree.

To show good cause as required by [Evidence Code] section 1043, defense counsels declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024 (Warrick).) The declaration must also describe a factual scenario supporting the claim of police misconduct. (Ibid.) The scenario need not be a credible or believable account of the events, but a plausible one. (Id. at pp. 1025-1026.) [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. (Id. at p. 1026.) Defendant met that standard.

The Attorney General urges the trial court did not abuse its discretion in denying the motion.[2] He argues defendant failed to deny all of the facts alleged in the police report. Significantly, he claims, defendant did not dispute that he had a large sum of cash and the buy money on his person. Nor did defendant deny that he was unemployed or that he lived near the Huntington Hotel. The Attorney General asserts defendant was required to explain how he came to possess so much money when he was unemployed and why he was looking for a hotel room when he lived in the neighborhood. He concludes defendants failure to do so means he failed to present a plausible factual scenario in light of the [police report]. (Italics omitted.) We are not persuaded.

The problem with the Attorney Generals analysis is that it would require a trial court to conduct a factual inquiry into the credibility of a defendants showing. To require a criminal defendant to present a credible or believable factual account of, or a motive for, police misconduct suggests that the trial courts task in assessing a Pitchess motion is to weigh or assess the evidence. It is not. (Warrick, supra, 35 Cal.4th at p. 1026.)

Defendant set forth a logical connection between the possession charge and his proposed defense. He claimed he did not possess the drugs, setting the stage for his theory that the police falsely connected him to the narcotics. Defendant explained his presence in the area, and contrary to the view of the trial court and the Attorney General, he did provide an explanation for the presence of the prerecorded money in his wallet. Defendant stated that Rodriguez, the person who received the bills from Officer Saragueta, asked him for change.

The Attorney Generals reliance on People v. Thompson (2006) 141 Cal.App.4th 1312 is misplaced. There, the defendants declaration in support of his Pitchess motion simply stated the officers did not recover any buy money from him, he did not offer and sell drugs to the undercover officer, and the officers arrested him because he was in an area where they were arresting people. (Id. at p. 1317.) In affirming the trial courts denial of an in camera hearing, the appellate panel reasoned the defendants showing was not internally consistent or complete. [H]e 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. (Ibid.)

In contrast, as we have explained, defendant presented a nonculpable explanation for his presence in an area where drugs were being sold. Defendants showing was sufficient for the trial court to conduct an in camera examination of the officers personnel records.

The remedy when a trial court has erroneously refused to conduct an in camera review of an officers personnel records is a conditional reversal. (People v. Gaines (2009) 46 Cal.4th 172, 180.) If, after review of the requested records, the trial court determines there is no discoverable material, it is to reinstate the judgment. If the court concludes relevant information exists, it must order disclosure and allow defendant an opportunity to demonstrate prejudice. If defendant establishes there is a reasonable probability the outcome would have been different had the information been disclosed, he is entitled to an order granting a new trial. If defendant cannot demonstrate prejudice, the trial court is to reinstate the judgment. (Id. at p. 181.)

DISPOSITION

The judgment is conditionally reversed in part and the matter is remanded to the trial court to conduct an in camera review of the requested personnel records for complaints alleging dishonesty, the fabrication of police reports, the planting of evidence, or perjury. After the review, if the court determines there is no discoverable material, it is directed to reinstate the judgment. If the court concludes the records contain relevant material, it shall order disclosure, give 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. If defendant cannot demonstrate prejudice, the court is directed to reinstate the judgment. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P.J.

WILLHITE, J.

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

[2]A trial courts denial of a Pitchess motion is reviewed for an abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992.)