P. v. Stopani
Filed 7/19/13
P. v. Stopani 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
JORGE STOPANI,
Defendant and
Appellant.
F064742
(Super.
Ct. No. 11CM7556)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
William W.
Lee, 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, Carlos A. Martinez and Marcia
A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
This appeal raises two
questions: Did the trial court fail to
make an adequate inquiry concerning a complaint about the performance of
appointed defense counsel by
defendant and appellant Jorge Stopani?
We conclude the court fully discharged its duty under
118. Second, did the court abuse its
discretion in denying a defense motion for continuance, made on the first day
of trial, to permit counsel to file a discovery motion under
Cal.3d 531? We conclude the court did
not abuse its discretion. Accordingly,
we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Defendant
was an inmate at the Substance Abuse Treatment Facility at the state prison in
Corcoran. Defendant was housed in a unit
that consisted of a day room, a toilet room, and three dormitory rooms, all of
which were overseen from an office separated from the unit by a wall with large
windows. Defendant was confined to a
wheelchair.
On June 28,
2011, Corrections Officer Tim Price announced from the office, over the
loudspeakers, that there would be a search of the unit; he instructed all the
inmates to return to their assigned dormitories. As inmates were complying, Price and his
partner, Jesse Lopez, Jr., also in the office, saw defendant wheel himself from
his dormitory to the toilet. There,
defendant stopped at a covered trash can, and the officers saw him pull an
unidentified object from between his legs and deposit it into the trash
can. Lopez told Price to continue to
watch defendant, and Lopez went to the trash can. He found that the trash can was empty except
for a homemade knife lying at the bottom.
Defendant
was charged with violation of Penal Code section 4502, subdivision (a),
possession of a weapon by a prisoner.
The information also alleged one prior strike and two prior prison term enhancements. (Pen. Code, §§ 1170.12, subds. (a)-(d),
667, subds. (b)-(i), 667.5, subd. (b).)
At
defendant’s readiness hearing, the court was discussing with defendant the
prosecution’s offer for resolution of the case.
Defendant stated that he understood the offer but “I just wanted to ask
you about the Pitchess Motion.†Defense
counsel interjected: “He’s also
requesting a Pitchess Motion, but I also believe I don’t have enough
information to file a Pitchess Motion.â€
After some further discussion, the court determined that defendant was
alleging ineffective assistance of counsel,
and the court convened a closed hearing pursuant to People v. Marsden, supra, 2 Cal.3d 118.
The sealed
transcript of the Marsden hearing
reveals that the court invited defendant to state his complaint concerning
counsel. Defendant said he had done some
research concerning Pitchess motions
and he believed counsel should file such a motion because “this officerâ€
(apparently, Lopez) had “up to like 3000†inmate complaints against him. The court questioned defendant about the
basis for this claim, and twice offered to place defendant under oath to
establish a basis for the Pitchess motion. Defendant declined. When asked to respond to defendant’s
contentions, defense counsel stated:
“I’ve had some conversations with [defendant] at different times. I’ve never been given any specific names. I said I need witnesses’ names or CDC
numbers. I’ve not been provided
any. [Defendant] indicated to me that
there was [sic] individuals, but
they’re not willing to participate.â€
Counsel later added: “I tried to
explain to [defendant] the Pitchess Motion.
I’ve done some. I’ve been granted
some. I’ve been denied some. I need to show good cause. It can’t be a fishing expedition …. I would love to do it, but I don’t have the
information that would be good cause for the Court to grant a Pitchess Motion.†The court denied the Marsden request, concluding that there was no current showing that
a Pitchess motion would be
justified.
On the
first day of trial, defense counsel advised the court that defendant had
learned of an inmate who would testify in the case, and that the inmate had
provided documentation of numerous complaints by the inmate against Lopez. During the course of a lengthy hearing on the
motion, the court examined the new documentation and noted that the complaints
against Lopez all involved disputes over lighting conditions in the unit, not
claims of falsification of evidence by Lopez.
Defense counsel denied that the defense would be based on a claim that
Lopez had planted the knife; instead, “[w]e’re saying my client was not the one
who placed†the knife in the trash can.
The court denied the motion for continuance on the basis defendant had
not exercised due diligence in obtaining and presenting to counsel the
information that was the basis for the request for continuance.
The trial
proceeded with Lopez, Price, and defendant’s fellow prisoner, Michael Flanery,
as the only witnesses. During her
closing argument to the jury, the prosecutor stated, “Ladies and gentlemen,
again, [defense counsel] basically just told you that Mr. Lopez and Mr.
Price planted evidence and lied to all of you.â€
Defense counsel objected: “Your
Honor, that’s misstating what I’m saying.
And, I’m objecting as to planting.â€
In fact, defense counsel had argued that the officers did see defendant
going to the trash can as they described, and saw him drop an unidentified
object into the can; when Lopez discovered the knife in the trash can, the
officers “want[ed] to tie it to somebody so they’re going to tie it to the last
person who was in that area.†Counsel
concluded that Lopez’s testimony that there was nothing else in the trash can
that defendant could have been depositing when the officers saw him, was
“simply fudging the truth for -- for him to make a stronger case for you to
convict my client.â€
The jury
returned a guilty verdict. Defendant
admitted the enhancement allegations.
Subsequently, the court sentenced defendant to the upper term of four
years, doubled pursuant to the “Three Strikes†law, and imposed two one-year
prior prison term enhancements, for an operative sentence of 10 years,
consecutive to defendant’s current sentence.
Defendant
contends the trial court abused its discretion in failing to make a careful and
sufficient inquiry into defendant’s claim of ineffectiveness of trial
counsel. (See People v. Reed (2010) 183 Cal.App.4th 1137, 1143-1144.) Here, the court gave defendant an ample
opportunity to explain why he believed a Pitchess
motion was appropriate. The court, after
questioning defendant and hearing from defense counsel, determined defendant
did not have information available to him that would support a
counsel does not include the right to have counsel make meritless motions. (See People
v. Mattson (1990) 50 Cal.3d 826, 876; People
v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.) Because the court adequately investigated
defendant’s allegation of ineffective assistance, the issue is whether the
court erred in concluding that there was no basis for a Pitchess motion. We turn to
that question.
As explained in
1011, 1018-1019, the procedure that has come to be known as a
holding of the Supreme Court in Pitchess
v. Superior Court, supra, 11 Cal.3d at pages 536-537, that “a criminal
defendant could ‘compel discovery’ of certain relevant information in the
personnel files of police officers by making ‘general allegations which
establish some cause for discovery’ of that information and by showing how it
would support a defense to the charge against him.†The Legislature subsequently “codified the
holding of Pitchess ….†(Warrick
v. Superior Court, supra, at p. 1019.)
The Pitchess procedure
requires the trial court to review pertinent personnel files to determine
whether there is relevant information that should be disclosed to the
defendant. However, the defendant must
establish good cause for such review. In
order to do so, the defendant is required to establish “a plausible scenario of
officer misconduct†(id. at p. 1026),
that is, “an assertion of specific police misconduct that is both internally
consistent and supports the defense proposed to the charges†(
It is clear from the record that
defense counsel held himself to a standard for the filing of such a motion that
is higher than the Supreme Court requires.
In other words, counsel asserted to the trial court at the
Pitchess motion because he did not
have documented allegations filed by other inmates against Lopez. Warrick
only requires allegations by the defendant.
Nevertheless, the defendant’s
allegations must be specific and consistent with his asserted defense and, in
the present case, defendant has failed on both counts. Before the court at the time of the
appointment of a defense expert. In
counsel’s declaration in support of that motion, counsel stated that the
defense was that, just as Lopez had observed, defendant was in the vicinity of
the trash can at the time in question, but he did not put the knife in the
can. When given the opportunity at the
that Lopez had placed the knife in the trash can, defendant declined to do
so. Even at trial, defense counsel
specifically disclaimed any theory that Lopez had planted evidence. Instead, the theory was that Lopez and Price
had, indeed, seen defendant roll into the toilet area next to the trash can,
had seen defendant drop something into the trash can, truthfully testified that
they could not tell what it was defendant had dropped into the can, and that
Lopez had “fudged†his in-court testimony in asserting that there was nothing
else in the can that defendant could have deposited instead of the knife. Accordingly, the defense theory was that the
officers had seen what they testified they saw, but had drawn erroneous
conclusions from what they actually saw.
This does not constitute an assertion of police misconduct, and does not
propose a defense that is supported by an allegation of prior falsification of
evidence by Lopez. Neither at the time
of the Marsden hearing nor at the
time of trial did defendant establish good cause for an examination of Lopez’s
personnel records pursuant to Pitchess.
This brings us to defendant’s final
contention, that the court abused its discretion in failing to grant a
continuance of the trial to permit the filing of a Pitchess motion. Because, as
we have concluded, defendant did not establish that such a motion would likely
have been meritorious, the court did not err in refusing to grant the
continuance; nor was defendant prejudiced by the failure to grant a
continuance, since he did not have grounds for a successful
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Gomes, J. and Poochigian, J.
name="_ftn2" title="">†Judge
DeSantos presided over the Marsden
and Pitchess motions; Judge LaPorte
presided over the motion for continuance and trial.
