P. v. Pham
Filed 7/30/12 P.
v. Pham CA2/8
NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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 EIGHT
THE
PEOPLE,
Plaintiff
and Respondent,
v.
JIMMY DAT PHAM,
Defendant
and Appellant.
B233975
(Los Angeles County
Super. Ct. No. GA081451)
APPEAL from a judgment of the
Superior Court of
County. Dorothy L. Shubin,
Judge. Affirmed in part,
conditionally reversed and remanded in part.
Raymond M. DiGuiseppe, 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, James William Bilderback II and Steven E. Mercer, Deputy
Attorneys General, for Plaintiff and Respondent.
* *
* * * * * * * *
SUMMARY
Defendant Jimmy D. Pham was
charged by information with one count of possession for sale of cocaine base
to gang enhancement allegations (Pen. Code, § 186.22, subd. (b)(1)(A)). Defendant filed a motion for pretrial
discovery of evidence of misconduct
by the arresting deputies, alleging that his oral and written confessions were
coerced by police misconduct. (
Cal.3d 531 (Pitchess).) The trial court denied the motion, finding that defendant
failed to demonstrate good cause for the requested discovery.
The jury convicted defendant
and found true the gang enhancement
allegation. Defendant’s Penal Code
section 1118.1 motion, challenging the sufficiency of the evidence to support
the gang allegation, was denied. He was
sentenced to 3 years on count 1, 2 years for the gang enhancement, and was
granted 580 days presentence custody credit, consisting of 290 actual days
and 290 days of conduct credit.
On appeal, defendant
contends (1) the trial court abused its discretion in denying his
by good cause; and (2) insufficient evidence supports the gang enhancement
because it was based entirely on defendant’s own statements about selling
narcotics for the benefit of a gang, and thus violated the corpus delicti
rule. We agree that the trial
court erred in denying defendant’s Pitchess
motion and therefore conditionally reverse and remand the case for the limited
purpose of conducting an in camera review and to assess prejudice in the event
that responsive documents are found. In
all other respects, the trial court’s judgment is affirmed.
FACTS
On the evening of September
2, 2010, Los Angeles County Deputy Sheriff Choong Lee was on patrol in San
Gabriel as part of Operation Safe Streets (OSS), a task force that targets
Asian street gangs. Deputy Lee entered
Café Window, a local restaurant that is a known gang hangout, and approached
defendant, who was not engaged in any criminal activity, to speak with him. Defendant told Deputy Lee that he was on
probation and that his name was “Jimmy.”
Deputy Lee noticed that defendant had a tattoo of koi fish. Deputy Lee then asked defendant if he was in
possession of anything illegal, and defendant replied that he was carrying rock
cocaine in his pocket. Deputy Lee then
detained and searched defendant, finding 21.9 grams of rock cocaine and $132 in
cash in his pockets. Other members of
the OSS task force, including Deputy Klinkalong, arrived at the scene.
In
Deputy Lee’s patrol car, defendant waived his Miranda
name="_ftnref2" title="">[2] rights and agreed to talk with Deputy
Lee. He told Deputy Lee that he had been
out of work for two years and that he was selling rock cocaine he received “on
credit” from his gang, the Vietnamese Boys, or V Boys. Defendant explained that after selling drugs
he received on credit, he kept a portion of the proceeds and gave the rest to
the V Boys, which would use the money for recruitment and to enhance the gang’s
stature. Defendant told Deputy Lee that he
went by the moniker “Phat Jimmy,” and that he had been a member of the V Boys
since the ninth grade. Defendant also
wrote and signed a statement which said:
“I was sitting at the bar when Deputy Lee asked me if I was on
probation. I said yes. I had rock cocaine in my pocket. The cocaine was mine. I haven’t had a job for two years. I sell cocaine. The rock cocaine was less than an
ounce.”
Deputy
Lee testified as a gang expert with experience dealing with Asian gangs. He opined that narcotics sales are the
primary moneymaking activity of Asian gangs.
These gangs use narcotics sales to recruit more members, intimidate
other gangs, and purchase weapons and more drugs. Members receive drugs on credit from their
gang to sell as a reward for contributing to the gang’s activities. He also testified that it is common for Asian
gang members to have tattoos of koi fish.
Deputy Lee testified that
the V Boys is an Asian gang whose members are primarily Vietnamese. Before he spoke with defendant in Café
Window, Deputy Lee had seen a picture of defendant on a chart that
investigators in the sheriff’s office used to identify gang members. Defendant appeared on this chart as a member
of the V Boys. During cross-examination,
Deputy Lee admitted that before the incident he had no contact with defendant,
and that defendant did not appear to be involved in criminal activity when he
approached him. He further stated that
defendant did not write any statements about being a gang member, and that
“general people in the population” who are not gang members have tattoos of koi
fish.
Deputy Lee also testified
about possession of drugs for “purposes of sale” and to benefit a gang. When posed with a hypothetical based on the
facts of this case, Deputy Lee opined that drug possession benefits the gang by
boosting its reputation, getting money for it, and facilitating
recruitment. He further testified that a
person in possession of 21 grams of cocaine and $132 in cash and not under the
influence of the drug “possessed the narcotics for possession of sales because
the denomination itself is consistent with street level sales, $20 pieces, five
dollar hits” and the quantity of drugs far exceeds the usable amount. Tom Yu, an expert on narcotics sales who was
also assigned to OSS, similarly concluded under the same hypothetical, the
possession was for purposes of sale based on the quantity of drugs.
DISCUSSION
Summarizing again the points
raised on appeal, defendant contends:
(1) the trial court abused its discretion by summarily denying
defendant’s Pitchess motion without
conducting an in camera review of the
requested records; and (2) the true finding on the gang enhancement must be
reversed because it was not buttressed by independent evidence but rested
entirely on defendant’s admissions in violation of the corpus delicti
rule. We agree with defendant’s first
argument, but find no merit in the second.
1.
Trial
Court’s Denial of Defendant’s Pitchess
Motion
Peace officer
personnel records and records concerning citizen complaints made against peace
officers are confidential, and are subject to discovery only under limited
circumstances. (Pen. Code, §
832.7.) The procedure for requesting discovery of confidential
peace officer personnel records and citizens’ complaints is governed by
Evidence Code sections 1043 through 1047. A defendant
requesting the confidential information must make a good cause showing by
affidavit setting forth the materiality of the requested information to the
pending litigation, and must assert a reasonable belief that the government
agency identified in the motion has the type of information sought. (Evid. Code, § 1043, subd. (b)(3).) The party seeking the information must also
provide a description of the type of information sought, and notice must be
provided to the agency having custody of the records. (Id.,
§ 1043, subds. (a), (b)(2), (3).)
A showing of good cause is
measured by relatively relaxed standards that serve to insure the production of
all potentially relevant documents for trial court review. (City
of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84.) It requires only that the defendant establish
a “logical link between the defense proposed and the pending charge,” and
articulate with some specificity “how the discovery being sought would support
such a defense or how it would impeach the officer’s version of events.” (Warrick
v. Superior Court (2005) 35 Cal.4th 1011, 1021 (Warrick).)
The specificity requirement
“enables the trial court to identify what types of
officer misconduct information, among those requested, will support the defense
or defenses proposed to the pending charges.”
(Warrick, supra, 35 Cal.4th at p. 1021.) It insures that the defendant’s request does
not compel discovery of “ ‘ “all information which has been obtained
by the People in their investigation of the crime” ’ ” but rather
only instances of officer misconduct that are related to the types of
misconduct alleged by the defendant. (
To make the minimal showing,
“the defendant must propose a potential defense to the pending charge,
articulate how the discovery might lead to or constitute evidence providing
impeachment or supporting the defense, and describe an internally consistent
factual scenario of claimed officer misconduct. . . . [T]he scenario may be a simple denial of
accusations in the police report or an alternative version of what might have
occurred.” (Garcia v. Superior Court (2007) 42 Cal.4th 63, 72 (
If a defendant shows good
cause, the court must conduct an in camera hearing to determine what
information sought, if any, must be disclosed.
(People v. Gaines (2009) 46
Cal.4th 172, 179 (Gaines).) A criminal defendant is entitled to discovery
of all relevant documents or information in the confidential records of the
peace officers accused of misconduct against the defendant, provided it does
not concern officer conduct occurring more than five years before the incident,
the results of internal police investigations, or facts with no practical
benefit to the defense. (
Code, § 1045, subd. (b).) This
encompasses not only evidence that would be admissible at trial, but also
evidence that may lead to admissible evidence or evidence that is pertinent to the
defense. (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1048-1049;
(1993) 5 Cal.4th 47, 53.) The defendant
is not required to present a “credible or
believable factual account of, or a
motive for, police misconduct,” but may succeed on a Pitchess motion by alleging a scenario of officer misconduct that
“might or could have occurred.” (
We review the denial of a
motion for discovery of peace officer personnel records for abuse of
discretion. (People v. Breaux (1991) 1 Cal.4th 281, 312.)
Defendant’s motion sought
five broad categories of information.
Category 1 sought many different types of complaints against Deputies
Lee and Klinkalong, including complaints of “aggressive behavior, violence,
excessive force, or attempted violence or excessive [force], 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 but not
limited to false overtime or medical reports, and any other evidence of
misconduct amounting to moral turpitude within the meaning of
[(Wheeler)].” Category 2 sought discovery of any
disciplinary actions taken pursuant to those complaints. Category 3 sought “[a]ny other material which
is exculpatory or impeaching within the meaning of Brady v. Maryland (1963) 373 U.S. 83.” Category 4 sought information and evidence
related to Civil Service Commission (CSC) hearings in which either deputy was
accused of any of the types of misconduct listed above. And category 5 sought “[t]he statements of
all police officers who are listed as either complainants or witnesses within
the meaning of [categories] 1 and 3.”
As we will discuss below, as
to category 1, we conclude that defense
counsel has demonstrated good cause for discovery of complaints of acts of
coercive conduct and dishonesty (including fabrication of charges, fabrication
of evidence, fabrication of reasonable suspicion and/or probable cause, illegal
search and/or seizure, false arrest, perjury, dishonesty, writing of false
police reports, and planting of evidence).
But defendant failed to demonstrate good cause as to complaints of acts
of excessive force (including acts of aggression, violence, excessive force, or
attempted violence or excessive force), writing of false police reports to
cover up the use of excessive force, violation of constitutional rights, bias,
evidence of other conduct constituting moral turpitude, and writing of
“misleading internal reports including but not limited to false overtime or
medical reports.” Defendant also demonstrated good cause for the items
listed in categories 2 and 3, with category 2 being limited to the same extent
as category 1. As to categories 4
and 5, the information sought is not discoverable.
In addition, we conclude
that defendant’s good cause showing applies only to Deputy Lee, and not to
Deputy Klinkalong. On appeal, defendant
showed no reason to believe that the trial would have ended in a different
outcome if information related to Deputy Klinkalong had been disclosed. (See, e.g., Gaines, supra, 46 Cal.4th
at p. 182 [noting that “a defendant who has established that the trial court erred
in denying Pitchess discovery must
also demonstrate a reasonable probability of a different outcome had the
evidence been disclosed”].) Nothing in
defendant’s motion showed any misconduct by Deputy Klinkalong, who neither
interrogated defendant nor wrote the incident report. (See People
v. Memro (1985) 38 Cal.3d 658, 686 (Memro).)
Respondent cites
allegations of officer misconduct are not sufficiently specific, and that the
declaration therefore does not satisfy the requirements of Evidence Code
section 1043. The defendant in
cocaine for sale. (Warrick, at pp. 1016-1017.)
Claiming that he was falsely arrested and that the arresting officers
fabricated facts in their arrest report, he filed a Pitchess motion to compel discovery of dishonesty complaints and “a
long list of other misconduct” by the arresting officers. (Warrick,
that the defendant had possessed cocaine for sale and asserted two alternative
explanations for what happened. (
supporting the allegations consisted of a simple denial of guilt and that the
defendant “had not affirmatively set out any facts to describe a specific
factual scenario.” (Id. at p. 1022.) The court
concluded that the defendant’s factual foundation was both specific and
plausible because, “[b]y denying the factual assertions made in the police
report – that he possessed and discarded the cocaine – defendant established a
‘reasonable inference that the [reporting] officer may not have been
truthful.’” (Id. at p. 1023, citation omitted.)
Here, the allegations in
defense counsel’s declaration are sufficiently specific. The declaration averred that all of the
statements attributed to defendant, from the point of initial contact with the
deputies to his questioning at the station, were elicited through
coercion. The declaration describes specific
acts of coercion: “Based on information
and belief Mr. PHAM was grabbed from behind by the officers, while being
simultaneously searched.” The
declaration also describes an alternative factual scenario to the one alleged
in the incident report, asserting defendant “did not willing [
attributed to him” and that the deputies attempted to conceal the illegality of
their actions in “unwarrantedly detaining and questioning” defendant in two
separate ways: by making false statements in their reports and by using the
“contraband allegedly recovered . . . to bolster their false version
of events and to give them more justification for their inappropriate
actions.”
We cannot say that
defendant’s version of events is implausible.
Counsel declared that defendant’s oral and written statements were
involuntary and were coerced by Deputy Lee’s use of physical force and that
Deputy Lee attempted to cover up this improper conduct by falsely claiming the
statements were voluntary. It is
possible that this “might or could have” happened, which is all that is
required under Pitchess. (Warrick,
supra, 35 Cal.4th at p. 1026.) This scenario is also “internally
consistent,” since it differs from the incident report only insofar as it denies
that defendant voluntarily made the statements attributed to him in the
report. (Ibid.) An internally
consistent factual scenario “may be a simple denial of accusations in the
police report or an alternative version of what might have occurred.” (Garcia,
supra, 42 Cal.4th at p. 72.)
It was undisputed that
defendant did not appear to be engaged in any illegal activity when Deputy Lee
approached him in the café. Deputy Lee
recognized him from a chart of photos of members of the V Boys gang. Defendant was sitting in a café where gang
members were known to hang out and had a koi fish tattoo, but Deputy Lee did
not testify that his suspicions were aroused by the encounter with defendant in
a café with a koi fish tattoo. Deputy
Lee contacted defendant because he “just wanted to know how he was doing. If he was still in the gang, what he’s been
up to.” While admitting in the
declaration that “[t]he officers recovered some objects of possible contraband
once Mr. PHAM was detained, questioned and searched,” defendant denied that he
voluntarily told Deputy Lee that he had rock cocaine in his pocket or that he
possessed it for sale and had engaged in drug sales for his gang for two
years. Defendant “establish[ed] a plausible
factual foundation” for a defense to the charge of possession for sale of
cocaine base on the premise that his statements were elicited involuntarily by
coercive police tactics. (
410, 417.)
A defense formed around this
factual foundation provides good cause for inquiring into past complaints that
Deputy Lee engaged in coercive conduct, planting of evidence, and the various
kinds of dishonesty described in the first category of the motion (with the
exception of writing of false police reports to cover up the use of excessive
force).
Defendant, however, failed
to show good cause for discovery of the other types of complaints listed in the
first category of discovery. In
particular, he failed to show that complaints relating to excessive force are relevant. Defendant’s relies on Memro, supra, 38 Cal.3d
at page 681, for the proposition that “evidence that the interrogating officers
had a custom or habit of obtaining confessions by violence, force, threat or
unlawful aggressive behavior would have been admissible on the issue of whether
the confession had been coerced.” We do
not read Memro to support disclosure
of all excessive force complaints when a defendant claims a confession was
extracted by force. And, in any event,
the reasoning in People v. Jackson
(1996) 13 Cal.4th 1164 (Jackson) is
more persuasive and on point.
asserts that his confession was coerced, a discovery request that seeks all
excessive force complaints against the arresting officers is overly
broad.” (Jackson, at p. 1220.) While
defendant’s brief states that he was “essentially forced to make incriminating
statements,” he does not assert that the deputies used excessive force.
The declaration also failed
to establish good cause for discovery of Deputy Lee’s conduct constituting
moral turpitude. Even though the
declaration called into question Deputy Lee’s truthfulness, the blanket request
for “any other evidence of misconduct amounting to moral turpitude within the
meaning of [Wheeler,
overbroad. Although Wheeler generally holds that nonfelony conduct involving moral
turpitude is admissible to impeach a criminal witness, Wheeler did not consider such discovery in the context of the
confidentiality afforded to peace officer personnel records. (Wheeler,
at p. 295.) Cases that have considered
the intersection of Wheeler and
requirement of the Evidence Code, and that “only documentation of past officer
misconduct alleged by defendant in the pending litigation is relevant and
therefore subject to discovery.” (
Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1024 [seeking all
abrogate the good cause requirement . . . by permitting fishing
expeditions into the arresting officers’ personnel records in virtually every
criminal case”].)
There is even
less support for discovery of complaints relating to the various types of bias
mentioned in defendant’s motion, violations of constitutional rights, and writing of “misleading
internal reports including but not limited to false overtime or medical
reports.” Such items are “completely untethered either to the factual scenario
or to the proposed defenses outlined in defense counsel’s declaration.” (Warrick,
supra, 35 Cal.4th at p.
1022.)
To the extent
that category 2 seeks discovery of any disciplinary actions taken against
Deputy Lee for the complaints against him, this information is discoverable for
the same categories of complaints for which discovery is authorized under
category 1, ante.
As for category 3, we agree
with defendant that he is entitled to any evidence that would exculpate him or
reduce his penalty under the United States Supreme Court’s ruling in
(2002) 29 Cal.4th 1, 15 [“a trial court that in response to a criminal defendant’s
discovery motion undertakes an in-chambers review of confidential documents
can, if the documents contain information whose use at trial could be
dispositive on either guilt or punishment, order their disclosure”].)
As for categories 4 and 5,
we conclude that information and evidence connected to CSC hearings, including
the transcripts, in which Deputy Lee was accused of misconduct, as well as
statements by any peace officers investigating the complaints against Deputy
Lee, are not discoverable. (Evid. Code,
§ 1045, subd. (b)(2) [in determining relevance in a criminal proceeding, the
trial court “shall exclude from disclosure” “the conclusions of any officer
investigating a complaint”].) Typically,
“only the names, addresses and telephone numbers of individuals who have
witnessed, or have previously filed complaints about, similar misconduct by the
officer” are subject to disclosure. (
Defendant’s reliance on Britt v.
North Carolina (1971) 404 U.S. 226, 227 is misplaced. That case held that a defendant being retried
for murder was entitled to transcripts of the prior proceedings so that he
would be able to mount “an effective defense or appeal,” and did not concern
The trial court was required
to conduct an in camera hearing to determine the presence of any discoverable
material in Deputy Lee’s personnel files.
(People v. Gill (1997) 60
Cal.App.4th 743, 750.) Because it failed
to do this, it abused its discretion.
“To obtain relief, . . . a defendant who has established that
the trial court erred in denying Pitchess
discovery must also demonstrate a reasonable probability of a different outcome
had the evidence been disclosed.” (
In other words, he must establish that “prejudice resulted from the
trial court’s error in denying discovery.”
(Memro, supra, 38 Cal.3d at p. 684.)
Since we do not know whether complaints of the sort listed in
defendant’s motion have been made against the deputy in this case, we cannot
say whether it is reasonably probable that discovery would have led to a
different outcome. (Gill, at pp. 750-751.)
Consequently, we conditionally reverse the judgment and remand the case
to the trial court, which is to conduct an in camera review of the records in
Deputy Lee’s personnel files that are discoverable in conformance with this
opinion. (Gaines, at p. 180.) Should
the trial court find that these records contain no relevant information, the
judgment is to be reinstated. (
that the records do contain relevant information, it “ ‘must order disclosure, allow [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.)
2.
True
Finding on the Gang Enhancement
Defendant also contends that the prosecution did not present
sufficient evidence of the gang enhancement independent of the defendant’s confession,
and that this violated the corpus delicti rule. We disagree.
The corpus delicti rule
“‘essentially precludes conviction
based solely on a defendant’s out-of-court statements.’” (People
v. Alvarez (2002) 27 Cal.4th 1161, 1178, quoting People v. Ray (1996) 13 Cal.4th 313, 341.) “The term ‘corpus delicti’ refers to ‘the
body of a crime’ . . . or generally speaking, the ‘elements of the
crime.’” (People v. Shoemake (1993) 16
Cal.App.4th 243, 255 (Shoemake),
citations omitted.) It “does not include
the identity of the perpetrator, the degree of the crime, or the enhancement of
the penalty for the offense.” (
98, 101.) Therefore, the corpus delicti
rule, requiring independent evidence to support a conviction, has been held to
not apply to enhancements. (
Miranda, supra,
allegation in this case should be considered as part of the underlying crime,
and asks us to reject Shoemake and
decided. We disagree, and find
In
corpus delicti rule does not apply to an enhancement allegation under Penal
Code section 12022.85 for committing certain sexual offenses while knowingly
infected with AIDS, reasoning that enhancements are not crimes, but “merely
impose[] additional punishment for a crime when certain circumstances are found
to exist.” (Shoemake, supra, 16 Cal.App.4th at p. 255.) People v. Miranda,
held similarly, that the rule does not apply to the transportation element of
the crime of transporting a controlled substance for sale. Both cases stand for the proposition that the
corpus delicti rule does not apply to enhancements simply because they subject
a defendant to a lengthier sentence.
Even
if the corpus delicti rule did apply to gang enhancements, the rule would not
have been violated in this case. The
independent proof of the corpus delicti “may be circumstantial and need not be
beyond a reasonable doubt, but is sufficient if it permits an inference of
criminal conduct, even if a noncriminal explanation is also plausible.” (People v. Alvarez,
supra, 27 Cal.4th at p. 1171.) Here, Deputy Lee testified that defendant was
a member of the V Boys and that the café where he was found was frequented by
members of that gang. He further opined
that the amount of cocaine possessed by defendant suggested that he was holding
it for purposes of sale for the benefit of the V Boys. This was sufficient independent evidence of a
gang affiliation to corroborate defendant’s confession.
The judgment is
affirmed in part, and conditionally reversed and remanded in part.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J.
WE CONCUR:
BIGELOW, P. J. RUBIN, J.
name="_ftn1" title="">[1] Defendant
initially received 435 days of custody credit, consisting of 290 actual days
and 145 days of conduct credit. The
trial court later granted defendant’s postjudgment motion to correct his
custody credits and issued a new abstract of judgment nunc pro tunc.
name="_ftn2" title="">[2]
