P. v. Sellers

 

 

 

 

 

Filed 1/28/14  P. v. Sellers CA5

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

 
>

THE PEOPLE,   Plaintiff and Respondent,                           v.   BENNIE LEE SELLERS,   Defendant and Appellant.

F064145   (Fresno Super. Ct. No. F10903486)     >OPINION

 

            APPEAL
from a judgment of the Superior Court of
Fresno County.  W. Kent Hamlin,
Judge.

            Paul
Stubb, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys
General, for Plaintiff and Respondent.

-ooOoo-

BACKGROUND

            Defendant
was charged with being a felon in possession of a firearm (count I – former
Penal Codehref="#_ftn1" name="_ftnref1"
title="">[1] § 12021, subd. (a)(1)href="#_ftn2" name="_ftnref2" title="">[2]) and ammunition (count II – former § 12316, subd. (b)(1)href="#_ftn3" name="_ftnref3" title="">[3].)  Defense counsel stipulated
to the prior felony conviction for purposes of the two charges.  After a jury convicted defendant on both
counts, the court suspended sentence and placed defendant on three years’
formal probation.href="#_ftn4"
name="_ftnref4" title="">[4]

TRIAL EVIDENCE

Prosecution Evidence

            Defendant
and his wife, Sylvia Sellers, lived next door to Paula Lopez in a duplex.  The two residences share a wall.  At 6:00 p.m. on June 20, 2010, Lopez left the
duplex.  She returned a few hours later
and observed a hole in the shared wall.

Mrs. Sellers went
to Lopez’s residence.  Lopez had never
spoken to her before.  Mrs. Sellers told
Lopez “it was an accident … her husband was picking up some weights and it fell
and it made the hole.”  Later, Mrs.
Sellers told Lopez that “her husband was cleaning [a] pistol and that it had
fallen.”  She also told Lopez she would
fix the hole and eventually did so.

            Lopez
found a bullet in her residence the day after the incident.  She was using a walker, and the bullet “got
stuck” in it.

            Lopez’s
landlord, Jesse Atkins, eventually found out about the damage after it had been
repaired and called the police.

            On
the afternoon of July 8, 2010, Police Officer Tim Sullivan was dispatched to
Lopez’s residence.  Atkins had reported
that defendant was on parole.  However,
while en route to the scene, Officer Sullivan checked and discovered that
defendant was not on parole.

Officer Sullivan
first met with Atkins.  He then met with
Lopez, who provided him with the bullet she had found.  He asked why Lopez had not called the police
earlier.  Lopez said “she didn’t want
trouble[.]”

Mrs. Sellers
asked Officer Sullivan if he could meet with defendant at the residence’s side
door “because of the nosey neighbors.”  Officer
Sullivan spoke with defendant and told him he was investigating the hole in
Lopez’s wall.  Defendant told Officer
Sullivan that “he had had a firearm[,]” which he described as a black,
semiautomatic gun.  Defendant thought the
firearm was a “Rueger [sic] nine-millimeter.”

Defendant said
he had received the firearm from a friend named Mark.  Defendant said Mark had gone out of town and
had asked defendant to hold onto the weapon.  Defendant did not know Mark’s last name and
had no way of “getting ahold of him[.]”

            Defendant
told Officer Sullivan that he was manipulating the firearm, pulling the slide
back when it discharged, and the bullet went into the wall.

            After
speaking with defendant, Officer Sullivan returned to his patrol car.  Officer Sullivan called to check defendant’s
criminal history and discovered defendant had been convicted of a felony.  Meanwhile, defendant had exited his residence
and was driving away in a vehicle. 
Officer Sullivan exited his vehicle and stopped defendant.  Defendant complied and was arrested.

Defendant would
not allow Officer Sullivan to search his residence.

Defendant’s Testimony

Defendant
testified that an acquaintance named Mike came to his residence on June 20,
2010.  Mike asked defendant if he could
leave a loaded gun with him.  Defendant
said, “[Y]eah, go ahead and leave it, but make sure it’s unloaded….”  Without touching the gun, defendant then
showed Mike how to unload it.  While Mike
was holding the gun, it discharged. 
Defendant then told Mike to leave with the gun, and Mike complied.

On July 8, 2010,
defendant was served with eviction papers. 
Later that day, police officers arrived, and defendant spoke with
them.  Defendant never told Officer
Sullivan that he had possession of a handgun.

On
cross-examination, defendant testified that the gun “wasn’t in my hand long
enough to inspect serial numbers or anything….”

Prosecution’s Rebuttal
Evidence

Officer Sullivan
testified on rebuttal that defendant never mentioned another person being
present when the gun discharged, other than his wife.

Officer Miguel
Archan also testified on rebuttal.  He
responded to the scene in July 2010 along with Officer Sullivan.  Officer Archan does not recall defendant ever
mentioning another party was presenthref="#_ftn5" name="_ftnref5" title="">[5] or handled the gun when it discharged.

DISCUSSION

I.                  
THE COURT SHOULD
HAVE CONDUCTED AN IN-CHAMBERS REVIEW OF DOCUMENTS PURSUANT TO DEFENDANT’S >PITCHESShref="#_ftn6" name="_ftnref6" title="">[6] MOTION

A.     BACKGROUND

Defendant filed
a Pitchess motion alleging that law
enforcement officers engaged in various forms of misconduct, entitling him to
discovery of personnel files and related documents.  Defendant’s allegations of href="http://www.fearnotlaw.com/">misconduct fell into three categories:  (1) excessive force, (2) illegal href="http://www.sandiegohealthdirectory.com/">search, and (3)
misrepresentations of fact.

Defendant argues
the trial court abused its discretion when
it denied the motion and refused to conduct an in-chambers href="http://www.fearnotlaw.com/">review of the documents sought.

B.     ANALYSIS

“To determine
whether the defendant has established good cause for in-chambers review of an
officer’s personnel records, the trial court looks to whether the defendant has
established the materiality of the requested href="http://www.sandiegohealthdirectory.com/">information to the pending
litigation….”  (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1026 (>Warrick).)  Accordingly, the court is to ask whether
defense counsel’s affidavit “adequately responds” to the following questions:  â€œHas the defense shown a logical connection
between the charges and the proposed defense?  Is the defense request for >Pitchess discovery factually specific
and tailored to support its claim of officer misconduct?  Will the requested Pitchess discovery support the proposed defense, or is it likely to
lead to information that would support the proposed defense?  Under what theory would the requested
information be admissible at trial?...”  (>Id.
at pp. 1026-1027.)

1.      Excessive Force Allegations

Defense
counsel’s affidavit in support of the motion alleged that the arresting officer
used excessive and illegal force against defendant during the arrest.  It further alleges that “if” defendant used retaliatory
force against the officer, “such force was in defense of the defendant’s person
against acts of excessive and illegal force used by the officer against the
defendant in making an illegal arrest….” 
The affidavit does not allege that any portion of defendant’s statements
to Officer Sullivan resulted from excessive or unlawful force.

Defendant did
not meet his burden to require in camera document review on this ground.  The affidavit fails to “show[] a logical
connection between the charges and the proposed defense[]”  (Warrick,
supra, 35 Cal.4th at p. 1027) of
excessive force by the arresting officer. 
Defendant apparently sought discovery on this ground to explain, justify
or mitigate any force he used against the arresting officer.  But defendant was not charged with resisting arrest,
battery, assault or any other offense related to his interaction with law
enforcement officers. He was only charged with possessing a firearm and
ammunition, which occurred weeks before any relevant interaction with police
officers.  The affidavit thus establishes
no connection – much less a logical one – between the charges and this proposed
defense.

2.      Illegal Search Allegations

The motion’s
supporting affidavit  also alleges that
“the prosecution evidence in the instant case was obtained by means of illegal
police conduct in violation of the Fourth Amendment guarantee against
unreasonable searches and seizures.”

Defendant did
not identify any evidence that was purportedly obtained by an illegal search.href="#_ftn7" name="_ftnref7" title="">[7]  In this respect, the
affidavit did not show how the proposed defense (i.e., illegal search) related
to the charges or the prosecution’s evidence.  Nor does it “present … a specific factual scenario of officer misconduct .…”  (Warrick,
supra, 35 Cal.4th at p. 1025,
italics added.)

The court was
not required to conduct an in-chambers review based on defendant’s conclusory
illegal search allegations.

3.      Factual Misrepresentation Allegations

Defense
counsel’s affidavit further alleges that “Officer Timothy Williams [>sic] either intentionally or negligently
misstated statements made to him by Defendant.” 
Defendant’s points and authorities set forth two instances in which
Officer Sullivan allegedly misrepresented facts.

First, defendant
contended that Officer Sullivan misstated his own observations of defendant’s
driving:

“In this
action the officer made material misstatements with respect to his
observations, including fabricating appellant’s alleged dangerous driving
maneuvers.  He also states that Defendant
asserts that he did not drive in the manner described by the report and that
his driving route was different from that found in the report….”

This theory
falls prey to the same flaw that plagued defendant’s other contentions.  The motion offers no logical connection
between this proposed defense (i.e., Officer Sullivan fabricated observations
of defendant’s driving) and the charges (i.e., felon in possession of firearm,
ammunition).

Moreover, the
affidavit mischaracterizes the police report on this issue, which does not
describe defendant’s driving as dangerous. 
Thus, when this allegation is viewed in conjunction with the police
report, it does not suffice to “ â€˜establish a plausible factual
foundation’ for the alleged officer misconduct â€¦.”  (Warrick,
supra, 35 Cal.4th at p. 1025.)

Second, defendant
contended that Officer Sullivan misrepresented defendant’s statements regarding
possession of the firearm:

“After arriving [at defendant’s
residence, Officer Sullivan] knocked on [defendant’s] front door and began a
short conversation with [defendant].  [Defendant]
said about two weeks earlier, an acquaintance came to his door and requested
[defendant] keep a weapon for him while the acquaintance was out of town.
[Defendant] told the acquaintance to unload the weapon and while the
acquaintance was in the process of emptying the pistol, it accidentally
discharged.  The police report misreported
these facts.”

Unlike the other
grounds offered by defendant,href="#_ftn8" name="_ftnref8" title="">[8] this theory is logically related to the charges and supporting
evidence.  Officer Sullivan’s
recollection that defendant admitted possessing the weapon was crucial evidence
related to the charged offenses.  If Officer
Sullivan fabricated portions of defendant’s statement, href="#_ftn9" name="_ftnref9" title="">[9] such misconduct would be highly relevant to the defense.  Because defendant’s assertion is “internally
consistent and supports the defense proposed to the charges[,]” and the
information sought could potentially be admissible (Warrick, supra, 35
Cal.4th at p. 1026), the trial court should have conducted an in camera
review.

C.     DIRECTIONS ON REMAND

We therefore conditionally
reverse the judgment.  The trial court is
to review the requested documents in chambers on remand.  (See People
v. Gaines (2009) 46 Cal.4th 172, 180.)  If the court determines
the requested personnel records contain no relevant information, it shall
reinstate the judgment.  (See >id.
at p. 181.)  If the court
determines that relevant information exists and should be disclosed, the trial
court must order disclosure and provide defendant an opportunity to demonstrate
prejudice.  (See ibid.)  If there is a
reasonable probability the outcome of trial would have been different if the
information had been disclosed, the trial court is directed to order a new
trial.  (See ibid.)

II.               
THE PROSECUTION
DID NOT VIOLATE THE CORPUS DELICTI RULE

Defendant next
contends the prosecution failed to prove the corpus delicti of the charged
offenses apart from defendant’s extrajudicial
statements.  We disagree.

 â€œIn every criminal trial, the prosecution must
prove the corpus delicti, or the body of the crime itself - i.e., the fact of
injury, loss, or harm, and the existence of a criminal agency as its cause.  [T]he prosecution cannot satisfy this burden
by relying exclusively upon the
extrajudicial statements, confessions,
or admissions of the defendant. 
[Citaitons.]”  (>People v. Alvarez (2002) 27 Cal.4th
1161, 1168-1169, original italics.)  But,
the inference that a crime occurred need not be the only one suggested by the evidence.  (See People
v. Ledesma (2006) 39 Cal.4th 641, 722.)  The independent proof is sufficient “even if a
noncriminal explanation is also plausible. 
[Citations.]”  (>People v. Alvarez, supra, at p. 1171.)

Here, the “fact
of injury, loss or harm” was supported by Ms. Lopez’s testimony regarding the
wall damage. The “existence of a criminal agency as [the] cause” of the harm
was also suggested by the independent evidence.  Ms. Lopez’s discovery of the bullet in her
residence and the location of the damage gave rise to an inference that a gun
was discharged in defendant’s residence.  And, Mrs. Sellers’s conflicting stories about
how her husband caused the wall damage gave rise to an inference that she was
nervous about her husband’s involvement in causing the damage.href="#_ftn10" name="_ftnref10" title="">[10]  In sum, this evidence was at
least a “slight … showing of … harm by a criminal agency,…” (>People v. Alvarez, supra, 27 Cal.4th at p. 1171) which is all that is required.

III.            
THERE WAS
SUFFICIENT EVIDENCE DEFENDANT KNEW THE GUN WAS LOADED

Defendant next
contends there was insufficient evidence he knew the gun was loaded when it
discharged.  Therefore, he contends his
conviction on count II should be reversed.  We disagree.

Defendant
testified that he knew the gun was loaded when Mike brought it to his
residence.  Defendant claimed he then
showed Mike how to unload the gun without touching it himself.  While Mike was unloading the gun, it
discharged.  In contrast, Officer
Sullivan testified that defendant admitted he
was the one manipulating the firearm when it discharged.

The jury could
have believed defendant’s testimony he knew the gun was loaded, but rejected
the remainder of defendant’s account in favor of Officer Sullivan’s testimony.  That is, the jury could have concluded
defendant knew the gun was loaded, and was attempting to unload it >himself when it discharged.  We will not overturn this conclusion,
especially considering that Officer Sullivan’s testimony presented the more
plausible scenario.

We reject
defendant’s challenge to the sufficiency of the evidence supporting count II.

IV.             
PROBATION REPORT

Defendant
contends the court improperly imposed fees under section 1203.1b without
conducting a hearing to determine whether he had the ability to pay the fee.  Defendant forfeited this challenge by failing
to object or request a hearing.  (See
generally People v. Snow (2013) 219
Cal.App.4th 1148.)

DISPOSITION

The judgment is
conditionally reversed.  The matter is
remanded to the trial court for further proceedings consistent with this
opinion.  (See, ante, Discussion § I.C.)

 

 

                                                                                                            _____________________

                                                                                 
Poochigian, J.

WE CONCUR:

 

 

______________________

Levy, Acting P.J.

 

 

______________________

Kane, J.