P. v. Williams

Filed 3/29/06 P. v. Williams CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William D. Mudd, Judge. Affirmed in part, reversed in part, and remanded.

A jury convicted Cardell G. Williams of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a); count 1) and possession of drug paraphernalia (Health & Saf. Code, § 11364; count 2). In a bifurcated proceeding, the court found Williams had one prison prior conviction and one strike prior conviction. (Pen. Code, §§ 667, 667.5 & 1170.12).^[1] The court sentenced Williams to three years and eight months in prison

comprised of the low term of 16 months for the possession of cocaine base, doubled to 32 months as a result of the strike prior, plus a consecutive one-year term for the prison prior.

Williams appeals, contending: (1) the court erred by admitting into evidence his postarrest statement made in response to a police officer's question during a custodial interrogation before a Miranda^[2] warning was provided; (2) the court erred when it denied his pretrial Pitchess^[3] motion to determine whether the police officers' personnel files contained any discoverable information concerning complaints of false reports of narcotics activity; (3) the court violated due process when it limited in camera its review of complaints filed against the officers to a five-year period; and (4) the court erred by finding his prior conviction for battery with serious bodily injury was a strike prior and therefore imposed an improper sentence.

We conclude that when the trial court doubled the low term of 16 months for possession of cocaine base based on a prior felony conviction, it imposed an improper sentence. In all other respects, we affirm the judgment.

STATEMENT OF FACTS

Officer Laura Santiago of the San Diego Police Department patrolled an area in downtown San Diego known for a high rate of drug activity. Santiago saw Williams sitting on a curb in front of a homeless center holding a glass pipe and a wire. Santiago

recognized the glass pipe as one that is used to smoke rock cocaine. The wire appeared to be a "push wire," used to push drugs into the glass pipe. Santiago approached Williams who was sitting at the curb in close proximity to four or five other individuals. At that time, Officer Cory Mapston arrived to assist Santiago with the situation.

Mapston then took the glass pipe out of Williams's hands. Mapston noticed the pipe had characteristic black burn marks on the side, white residue and a Brillo pad filter inside the pipe. As Santiago started to place Williams under arrest, she asked him if he had anything on him she should know about, such as "drugs, weapons, needles, anything that would hurt or poke [her]." Williams said he had a "rock in his pocket." Santiago understood this to mean Williams had drugs in his possession. Santiago arrested Williams for possession of drug paraphernalia and handcuffed him. After she searched Williams's back pockets, she reached to the front part of his body and he started struggling and appeared to be defending his right pant pocket as if he did not want the officers to discover something. Officer Mapston assisted Santiago with the search. While Williams struggled and defended his right front pocket, Mapston searched the pocket and found a piece of rock cocaine. Santiago did not see Mapston take the drugs out of Williams's pockets but Mapston gave the rock of cocaine to Santiago and she placed the drugs into a plastic bag. Laboratory testing showed the substance consisted of 0.09 grams of cocaine base.

DISCUSSION

I

THE ADMISSION OF WILLIAMS'S STATEMENT

WAS NOT PREJUDICIAL TO WILLIAMS

Williams asserts the court prejudicially erred by admitting into evidence the statement he made to Officer Santiago about having a "rock in his pocket" because the statement was obtained during a custodial interrogation without a prior advisement of his Miranda rights. Williams further asserts the court erred by finding the statement was admissible under the public safety exception to Miranda.

The Attorney General agrees the statement was made in violation of Williams's Miranda rights and concedes the public safety exception does not apply. Accordingly, we find it unnecessary to address whether Williams's rights under Miranda were violated or whether the court erred by allowing Williams's admission into evidence under the public safety exception. We will instead address the question of whether the admission of Williams's statement was prejudicial under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). Under the Chapman standard, an error is prejudicial unless it is harmless beyond a reasonable doubt. (Ibid.)

A. Background

After Officer Santiago arrested Williams, she proceeded to search him. Before starting the search, Santiago asked Williams "if he had anything on him that I should know about, drugs, weapons, needles, anything that would hurt or poke me." Williams replied that "he had a rock in his pocket." Santiago did not question Williams further. Williams asserts his admission should have been suppressed because he made the statement before either officer gave him his Miranda warning.

At trial, the prosecution moved to admit Williams's postarrest statement that "he had a rock in his pocket" under the public safety exception to Miranda. The parties did not dispute the fact Williams was in custody at the time Santiago questioned him and the court agreed with the prosecution the statement was made without a Miranda warning. Defense counsel asserted Santiago's custodial interrogation about "drugs" did not fall under the exception. After hearing argument from counsel, the court admitted the statement into evidence under the public safety exception to Miranda. (See New York v. Quarles (1984) 467 U.S. 649, 655.) The court explained Santiago's question to Williams was made with the purpose of ascertaining the possibility of injury that could occur from the result of a search where the defendant may have a contaminated needle, razor or other sharp object in their possession. The court noted Williams's response was spontaneous in nature and ruled the statement admissible under the exception.

B. Harmless Error

"In Miranda, the court laid down a rule of a 'prophylactic' nature [citation] in order to protect the privilege against self-incrimination of the Fifth Amendment to the United States Constitution, as applied to the states through the due process clause of the Fourteenth Amendment: '[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant [by law enforcement officers] unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. . . . Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.' " (People v. Waidla (2000) 22 Cal.4th 690, 726-727, quoting Miranda, supra, 384 U.S. at p. 444.)

Miranda warnings are required only when a person is being subjected to custodial interrogation. (Miranda, supra, 384 U.S. at pp. 444, 478.) "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Id. at p. 444, fn. omitted.) "[A] suspect may not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to appointed counsel in the event the suspect is indigent." (People v. Sims (1993) 5 Cal.4th 405, 440 (Sims).)

Absent a waiver, we apply federal standards in reviewing a defendant's claim that statements were elicited from him or her in violation of Miranda. (People v. Bradford (1997) 14 Cal.4th 1005, 1033.) Extrajudicial statements obtained in violation of Miranda are inadmissible to establish the defendant's guilt. (Sims, supra, 5 Cal.4th at p. 440.) However, the erroneous admission of extrajudicial statements obtained in violation of Miranda is not per se reversible error. (Id. at p. 447; People v. Johnson (1993) 6 Cal.4th 1, 32-33.) Rather, we apply the harmless error analysis of Chapman, supra, 386 U.S. at page 24 to determine whether reversal is required. (Sims, supra, at p. 447; People v. Johnson, supra, at pp. 32-33; People v. Peracchi (2001) 86 Cal.App.4th 353, 363.) "A constitutional error is harmless when it appears 'beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained.' [Citation.]" (Needer v. United States (1999) 527 U.S. 1, 2.) Alternatively stated, an error is prejudicial if there is a reasonable possibility the wrongfully admitted evidence might have contributed to the verdict. (See Chapman, supra, 386 U.S. at p. 23.)

C. Analysis

As previously noted, the parties agree the statement was made during custodial interrogation and the public safety exception does not apply. Williams contends the court's error in admitting his statement in violation of his Miranda rights was prejudicial under Chapman, supra, 386 U.S. at pages 23 to 24. However, even had the statement been omitted, there is no reasonable likelihood under any standard that a different result would have occurred.

Assuming the court erred by admitting Williams's statement, we nevertheless find the admission resulted in no prejudice to Williams. When Officer Santiago first saw Williams sitting on a curb, she saw him holding a "push wire" and a glass pipe, both of which are used to smoke drugs. This prompted Santiago to approach Williams and place him under arrest for the possession of drug paraphernalia. Santiago questioned Williams and then started her search. Officer Mapston testified he assisted Santiago during her search of Williams. Mapston admitted to hearing Santiago speak to Williams but he did not recall Santiago asking Williams any questions or hearing a response. Instead, Mapston observed Williams moving around in a suspicious and evasive manner so that Santiago could not search his front pockets. This behavior alerted Mapston to the fact Williams was attempting to avoid the search. Based on Williams's possession of drug paraphernalia and his suspicious behavior during Santiago's attempted search, Mapston proceeded to search Williams's front pocket. He testified he felt a piece of rock cocaine. Mapston subsequently removed the rock cocaine from the pocket. Mapston's search and retrieval of the rock cocaine was conducted in the absence of hearing Williams's response to Santiago's question.

Considering the strength of the evidence, including Williams's possession of the glass pipe, push wire, the evasive actions taken by Williams during the search, and Mapston's search and retrieval of the rock cocaine without even hearing Williams's statement, we conclude the assumed error in admitting Williams's statement while in custody does not result in prejudice. We are convinced beyond a reasonable doubt that any error did not contribute to the verdict. (Chapman, supra, 386 U.S. at pp. 23-24; People v. Johnson, supra, 6 Cal.4th 1, 33.)

II

PITCHESS MOTION

Williams asserts the court abused its discretion by denying his Pitchess motion which sought discoverable information contained within Santiago and Mapston's personnel files. He argues the court inappropriately limited its review to only "reliable" documents and abused its discretion by denying his Pitchess motion. Williams further contends the court erred by limiting the in camera review of the officers' personnel files to incidents occurring within five years before Williams's arrest.

A. Background

Williams filed a Pitchess motion seeking the personnel records pertaining to Officers Santiago and Mapston. Williams argued the officers had fabricated the claim that he had drugs in his pocket when instead, the drugs and paraphernalia were picked up by the officers off the ground. Williams further argued the officers wrote and filed false police reports. Williams moved to discover "[a]ny evidence of, or complaints of: false statements in police reports of narcotics activity," including any evidence that the officers "lied in reporting someone possessed drugs." He asserted this information would be relevant to his case because it would have a bearing on the officers' credibility and show a bias on the part of the officers. Williams also argued he should be allowed the opportunity to discover complaints against the officers which originated more than five years before the date of his arrest.

At the hearing on the motion, the court found Williams had made a sufficient showing of good cause to require it to review Williams's personnel records for complaints concerning false statements in police reports of narcotics activity. The court then conducted an in camera review of the officers' personnel files and indicated it would review the files only for incidents occurring "within the five years preceding the arrest." After conducting the review of the officers' records and any complaints filed against the officers, the court announced that it found the personnel files "did not contain records that fall within the scope of reliable documents."

B. The Trial Court's Review of the Personnel Files

"[T]he California Legislature codified the privileges and procedures surrounding what had come to be known as 'Pitchess motions' [citation] through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045." (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81 (Santa Cruz).) These Penal Code sections define "personnel records" and provide they are "confidential," but subject to discovery pursuant to certain procedures set out in the Evidence Code. (Id. at pp. 81-82.) Together, Evidence Code sections 1043 and 1045 set forth the specific procedures for discovery of such personnel records. In adopting such statutory scheme, the Legislature " 'not only reaffirmed but expanded' the principles of criminal discovery articulated" in Pitchess. (Santa Cruz, supra, 49 Cal.3d at p. 84.)

The Pitchess statutory scheme recognizes that evidence contained in a law enforcement officer's personnel file may be relevant in a lawsuit, but that the officer "has a strong privacy interest in his or her personnel records and that such records should not be disclosed unnecessarily." (People v. Mooc (2001) 26 Cal.4th 1216, 1227 (Mooc).) To balance these competing interests, the Legislature "require[d] the intervention of a neutral trial judge, who examines the personnel records in camera . . . and orders disclosed to the defendant only those records that are found both relevant and otherwise in compliance with statutory limitations." (Ibid.; City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 53.)

Under the statutory scheme, a party seeking discovery of a peace officer's personnel records must follow a two-step process. (Mooc, supra, 26 Cal.4th at p. 1226.) First, the party must file a written motion describing the type of records sought, supported by " '[a]ffidavits showing good cause for the discovery . . . , setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.' [Citation.]" (Ibid., quoting Evid. Code, § 1043, subd. (b)(3).) Good cause for discovery exists when the defendant shows both "materiality" to the subject matter of the pending litigation and a "reasonable belief" that the agency has the type of information sought. (Santa Cruz, supra, 49 Cal.3d at p. 84.) A showing of good cause is measured by "relatively relaxed standards" that serve to "insure the production" for trial court review of "all potentially relevant documents." (Ibid.)

Second, if "the trial court concludes the defendant has fulfilled these prerequisites and made a showing of good cause, the custodian of records should bring to court all documents 'potentially relevant' to the defendant's motion. [Citation.] The trial court 'shall examine the information in chambers' [citation], 'out of the presence and hearing of all persons except the person authorized [to possess the records] and such other persons [the custodian of records] is willing to have present' [citation]. Subject to statutory exceptions and limitations . . . the trial court should then disclose to the defendant 'such information [as] is relevant to the subject matter involved in the pending litigation.' [Citations.]" (Mooc, supra, 26 Cal.4th at p. 1226; Evid. Code, § 1045, subd. (a).)

A trial court's decision concerning the discovery of material contained in law enforcement personnel files is, in most instances, reviewed for abuse of discretion. (Mooc, supra, 26 Cal.4th at p. 1228.) "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Gimenez (1975) 14 Cal.3d 68, 72.)

1. Analysis

A review of the sealed reporter's transcript of the in camera review of documents shows the trial court reviewed the personnel files of both Officers Santiago and Mapston. The trial court specifically reviewed the officers' personnel records and any complaints filed against them. The trial court did not, however, describe the nature of the complaints against the officers. This court requested the officers' personnel files and reviewed their records and the complaints made against them. There are no complaints in the file which are relevant to the request made in this case. Accordingly, we find no error with respect to the trial court's ruling on Williams's Pitchess motion.

C. Five-Year Limitation Period

Williams asserts the trial court violated due process by limiting its review of complaints to only those brought against the officers within the five years before the date of Williams's arrest. The California Supreme Court resolved this issue adversely to Williams in City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1.

The court in Brandon noted that the parallel policies of retaining citizen complaints for five years (Pen. Code, § 832.5) and the five-year cut-off for discovery of such complaints set forth in Evidence Code section 1045, subdivision (b)(1), reflect a legislative recognition that such complaints lose considerable relevance after five years. (Brandon, supra, 29 Cal.4th at p. 11.) It found Evidence Code section 1045 did not, on its face, violate due process. (Brandon, supra, at pp. 10, 12.) "State rules excluding evidence at trial deny a criminal defendant due process only if those rules offend fundamental principles of justice. [Citation.]" (Id. at p. 12.) Under the statute, the court found no constitutional rights were violated by the section's prohibition against the disclosure of complaints against officers filed more than five years before. (Ibid.) Hence, the trial court in the instant case did not violate due process when it limited its review to the statutory five-year period.

III

PRIOR FELONY CONVICTION

Williams asserts his prior felony conviction for battery with serious bodily injury does not qualify as a serious or violent felony and is therefore not a strike prior. Because the trial court considered his prior felony conviction as a strike prior at sentencing, it imposed an improper sentence. Williams requests the case be remanded for resentencing and respondent concedes. We agree that the trial court erred but we shall clarify in the discussion below why the sentence was improper.

A. Background

The original information alleged Williams had suffered two prior felony convictions within the meaning of sections 667, subdivisions (b) through (i). The first conviction was under section 245, subdivision (c), assault by means likely to produce great bodily injury on a peace officer. The second conviction was under section 243, subdivision (d), battery with serious bodily injury. It was further alleged that Williams served a prior prison term within the meaning of section 667.5, subdivision (b).

Before the trial in the instant case began, the prosecution moved to dismiss the first felony conviction under section 245, subdivision (c). The trial court granted the motion. In a bifurcated proceeding, the trial court found Williams had a prior conviction for battery with serious bodily injury in violation of section 243, subdivision (d). Based on this finding, the court made an additional finding that this prior conviction qualified as a serious or violent felony, thereby constituting a "strike" within the meaning of sections 667 and 1170.12. At sentencing, the court imposed a low base term of 16 months for Williams's conviction of possession of cocaine base. The court then doubled the base term "as a result of the strike prior." In addition, the court imposed a consecutive one-year enhancement under section 667.5, subdivision (b) for the prior prison term.

B. Statutory Guidelines

Williams contends the trial court imposed an unlawful sentence when it doubled the base term of 16 months under section 667, subdivision (e)(1). As explained by the Supreme Court in People v. Nobleton (1995) 38 Cal.App.4th 76, 80, "Section 667 provides in pertinent part as follows: '(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses. [¶] (c) Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following: . . . [¶] (2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense. . . . [¶] (e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: [¶] (1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term . . . shall be twice the term otherwise provided as punishment for the current felony conviction. . . . [¶] (f)(1) Notwithstanding any other law, subdivisions (b) to (i), inclusive, shall be applied in every case in which a defendant has a prior felony conviction as defined in subdivision (d). . . .' " (Italics and fns. omitted.)

Section 667, subdivision (d)(1) defines prior violent and serious felonies as: "Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state." Hence, under the language of section 667, when a defendant has a prior conviction for a serious or violent felony, the court must double the term for the current felony conviction.^[4]

C. Analysis

Williams does not dispute that the court must double the base term of a conviction in the circumstances set forth above. However, Williams asserts that by following the language of sections 667, subdivisions (b) through (i), 667.5, subdivision (c), 1192.7, subdivision (c), and the reasoning of People v. Taylor (2004) 118 Cal.App.4th 11, 22-26 (Taylor), his prior felony conviction for battery with serious bodily injury is neither expressly enumerated as a serious or violent felony under the Penal Code nor the legal equivalent of battery with great bodily injury.

First, battery with serious bodily injury is not expressly listed among the serious or violent felonies under the Penal Code. (§§ 667.5, subd. (c); 1192.7, subd. (c); People v. Kelii (1999) 21 Cal.4th 452, 456.) Second, Williams's reliance upon this court's ruling in Taylor, supra, 118 Cal.App.4th 11 is proper. In Taylor, the respondent argued a conviction under section 243, subdivision (d) qualified as a serious felony under section 1192.7, subdivision (c)(8).^[5] "According to Respondent, battery with serious bodily injury is a serious felony under subdivision (c)(8), because serious bodily injury is legally equivalent to great bodily injury." (Taylor, supra, 118 Cal.App.4th at p. 22.) This court rejected the argument and reasoned the terms "great bodily injury" and "serious bodily injury" are defined differently. "Because the jury . . . specifically found that Taylor had not inflicted great bodily injury, and its finding of serious bodily injury was not equivalent to a finding of great bodily injury, the trial court was not at liberty to make what amounted to a legal determination that Taylor had in fact inflicted great bodily injury." (Id. at p. 27.)

In the instant case, when the prior jury convicted Williams of battery with serious bodily injury, it expressly found he had not inflicted great bodily injury within the meaning of section 1192.7, subdivision (c)(8). (Taylor, supra, 118 Cal.App.4th at p. 26.) Following the reasoning in Taylor and the language of the Penal Code, Williams's prior conviction for battery with serious bodily injury is not a serious or violent felony. It therefore does not qualify as a strike prior. (§§ 667, subd. (d)(1); 667.5, subd. (c); 1192.7, subd. (c).) The trial court erred by doubling Williams's 16-month base term sentence for possession of cocaine base. Accordingly, the matter must be remanded for resentencing.

DISPOSITION

The trial court's finding that Williams's prior felony conviction for battery with serious bodily injury constitutes a serious or violent felony is reversed. The sentence imposed by the trial court for Williams's conviction of possession of cocaine base was

improper. The sentence is stricken and the case is remanded to the trial court for resentencing. In all other aspects, the judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

McDONALD, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

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

^[4] As discussed in People v. Nobleton, supra, 38 Cal.App.4th at page 81 and People v. Anderson (1995) 35 Cal.App.4th 587, 595, section 667, subdivisions (b) through (i) are not enhancements. In their briefs, Williams and the Attorney General appear to view the doubling of Williams's base term sentence as an enhancement. According to the Supreme Court, when "the base term is doubled, [that] does not constitute an enhancement. Instead, it is the articulation of a parallel sentencing scheme for specifically described recidivists." (Anderson, supra, 35 Cal.App.4th at p. 595.) An enhancement is when the court imposes an additional term of imprisonment that is added to the base term. "A base term is . . . 'the determinate prison term prescribed by law. . . . ' [and] constitute[s] a separate sentencing formulation." (Ibid.)

^[5] Section 1192.7, subdivision (c)(8) states that a serious felony is "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm."