Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. PA062517 Sanjay Jumar, Judge.
Sarah A. Stockwell, 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, Mary Sanchez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Defendant Curtis Tony Clark appeals from the judgment entered following a jury trial that resulted in his conviction of selling cocaine base. He contends the trial court erred in: (1) denying his Pitchess motion as to three of four police officers; (2) giving CALCRIM No. 300; and (3) in some of its sentencing choices. We conditionally reverse and remand with directions.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
FACTUAL AND PROCEDURAL BACKGROUND
Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357-358), the evidence established that on August 6, 2008, Los Angeles Police Officer Rahsaan Fobbs was working undercover in a narcotics sting operation. Fobbs identified People’s Exhibit 1 as a photocopy he made of a $20 bill which he intended to use as buy money. While on the street later that day, Fobbs was monitored by other officers both visually and by a one-way transmitting wire. Fobbs approached defendant and offered to purchase cocaine. Defendant initially declined but then directed Fobbs to meet him in the parking lot of a gas station about 100 feet away. There, defendant gave Fobbs rock cocaine in exchange for the $20 bill Fobbs had previously photocopied. After signaling to the other officers that a narcotics transaction had occurred, Fobbs left the area before an arrest was made to preserve his undercover status. As he was leaving, Fobbs saw defendant entering the gas station snack shop. Fobbs returned to the police station where he booked the rock of cocaine into evidence and wrote a report.
Detective Robert Cornejo identified People’s Exhibit 1 as a photocopy of a $20 bill that Fobbs gave him before the undercover operation began. During the operation, Cornejo was one of several officers monitoring Fobbs’s transmitter from several blocks away. Although Cornejo could only hear Fobbs, other officers could see him. After Fobbs confirmed that a buy had occurred, uniformed officers were instructed to take custody of defendant. When Cornejo arrived at the gas station about five minutes later, he saw defendant in custody. Based on Fobbs’s statement that he saw defendant going into the snack shop immediately after the transaction, Cornejo went there to recover the buy money. After identifying himself and his partner, Cornejo retrieved a $20 bill from the attendant. Detectives Cornejo and Javier matched the serial number of that $20 bill with the serial number of the $20 bill depicted on People’s Exhibit 1. Cornejo wrote on the photocopy: “Detective II, Robert R. Cornejo, recovered $20 from Mobil Gas Station.” In Cornejo’s presence, Javier circled the serial number on People’s Exhibit 1. Cornejo later returned the currency to Fobbs so that it could be used in another undercover operation. In a search, Cornejo found nothing on defendant’s person; Cornejo found two more $20 bills in defendant’s car.
The trial court granted defendant’s objection and motion to strike Cornejo’s testimony that People’s Exhibit 1 also contained the notation: “D. Javier verified the serial numbers to the $20.” But People’s Exhibit 1 was received into evidence without objection and, although the record on appeal does not include a copy of it, there is no indication that the handwritten reference to D. Javier was redacted from the exhibit. Accordingly, the notation itself was in evidence.
Defendant was charged by amended information with sale of cocaine (Health & Saf. Code, § 11352, subd. (a)); prior convictions were alleged pursuant to Health and Safety Code section 11370.2, subdivision (a), Penal Code section 667.5 and the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). After the jury found defendant guilty, defendant waived a jury trial on the prior conviction enhancements. The trial court struck two of eight Penal Code section 667.5 alleged priors and found true the remaining six as well as the two Health and Safety Code section 11320.2, subdivision (a) priors and one Three Strikes prior. Defendant was sentenced to 22 years in prison. He filed a timely notice of appeal.
All undesignated statutory references are to the Penal Code.
DISCUSSION
1. The Trial Court Erred in Denying Pitchess Discovery as to the Other Officers
Defendant contends the trial court erred in denying his Pitchess motion as to Officer Guevara and Detectives Javier and Cornejo. We agree that the trial court erred in denying the motion as to those officers. As to Cornejo and Javier, we conditionally reverse and remand with directions; as to Guevara, we find the error harmless.
Defendant also asks that we independently review the sealed transcript of the trial court’s Pitchess document review and determine whether the trial court disclosed all relevant complaints against Fobbs. We do so under the abuse of discretion standard. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232 (Mooc).) We have reviewed the transcript of the in camera proceeding and conclude that the trial court adequately described the various documents it considered and that it did not abuse its discretion by rejecting discovery of those documents.
A. Defendant Showed Good Cause
In response to a Pitchess motion, the trial court screens law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant’s defense. (Mooc, supra, 26 Cal.4th at p. 1225.) The statutory scheme seeks to balance the defendant’s right to discovery of records pertinent to the defense with the peace officer’s reasonable expectation that the officer’s personnel records will remain confidential. (See Pen. Code, §§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043-1047.)
In Garcia v. Superior Court (2007) 42 Cal.4th 63 (Garcia), our Supreme Court explained that a Pitchess motion may be supported by an affidavit from counsel describing, on information and belief, “a factual scenario that would support a defense claim of officer misconduct. [Citation.] ‘That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.’ [Citation.]... [Citation.] Corroboration of or motivation for alleged officer misconduct is not required. [Citation.] Rather, ‘a plausible scenario of officer misconduct is one that might or could have occurred.’ [Citation.] A scenario is plausible when it asserts specific misconduct that is both internally consistent and supports the proposed defense. [Citation.]” (Id. at p. 71.) Although we review Pitchess orders under the abuse of discretion standard (People v. Hughes (2002) 27 Cal.4th 287, 330), our Supreme Court has emphasized that the threshold showing of good cause required to obtain Pitchess discovery is “relatively low.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83, 94; accord, Garcia, supra, at p. 70.)
Here, defendant’s Pitchess motion sought complaints relating to “acts of violation of constitutional rights, fabrication of charges, fabrication of evidence, tampering with evidence, tampering with witnesses, fabrication of reasonable suspicion and/or probable cause, 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 including but not limited to false overtime or false medical reports, and any other evidence of misconduct amounting to moral turpitude... against” Officer Fobbs and Detectives Guevara, Javier and Cornejo.
Defense counsel’s affidavit submitted in support of the motion alleged that, according to Fobbs’s police report (a copy of which was not attached to the motion), Detectives Guevara, Javier and Cornejo listened to the interaction between Fobbs and defendant over Fobbs’s transmitter; afterwards, these officers retrieved the money from the gas station snack shop. Defense counsel stated: “I am informed and believe that Officer Fobbs, supported by [Detectives Guevara, Javier and Cornejo], fabricated the facts in this case to build a case against defendant... because they suspected him of selling drugs. Defendant... neither possessed nor sold any cocaine or other narcotics on the date in question. Defendant... was approached by someone asking to [buy] drugs and he did say ‘no, ’ but did not thereafter motion anyone over to his car to make a drug transaction.” The trial court granted that motion as to Fobbs only.
Under this factual setting, it was error to limit Pitchess discovery to Fobbs. The “factual scenario supporting the claimed officer misconduct” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024) related to Fobbs, Guevara, Cornejo and Javier fabricating the facts: Fobbs fabricating that a drug transaction occurred and Guevara, Cornejo and Javier fabricating that they overheard the transaction and then recovered the buy money from the gas station attendant. This was a sufficient showing of good cause to require the trial court to order the personnel records of Guevara, Cornejo and Javier be made available for in camera review.
The People’s reliance on People v. Thompson (2006) 141 Cal.App.4th 1312 for a contrary result is misplaced. In Thompson, the defendant was arrested after he sold cocaine to an undercover police officer; two $5 bills, which were later identified as the bills the undercover officer gave to the defendant for the cocaine, were found on defendant’s person. Counsel’s affidavit in support of defendant’s Pitchess motion 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. (Thompson, at p. 1317.) The appellate court affirmed the trial court’s denial of an in camera hearing, reasoning that the defendant’s showing was not internally consistent or complete. (Ibid.)
Here, implicit in the trial court’s granting of the Pitchess motion as to Fobbs is a finding that defendant did present an internally consistent and complete showing of plausible officer misconduct. Having so found as to Fobbs, there is no logical reason for the trial court to have found the showing did not extend to the other officers who participated in the investigation: evidence of the actual buy and evidence of the retrieval of the buy money were both key elements of the case against defendant.
B. The Error Was Harmless as to Guevara, But Prejudicial as to Cornejo and Javier
Our finding that the trial court erred in denying the Pitchess motion as to Guevara, Cornejo and Javier does not end our inquiry because any such error is subject to harmless error analysis. (See People v. Memro (1985) 38 Cal.3d 658, 684, disapproved on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2 (Gaines).)
To establish defendant was prejudiced, we “determine if there was a reasonable probability that the outcome of the case would have been different had the information been disclosed to the defense.” (People v. Hustead (1999) 74 Cal.App.4th 410, 422.) Denial of a Pitchess motion is harmless error where “extensive evidence” links the defendant to the crime. (People v. Samuels (2005) 36 Cal.4th 96, 110.)
We find no prejudice in the trial court’s failure to order Pitchess discovery as to Guevara because Guevara did not testify and there was no reference to him at the trial. Since the People’s case in no way rested on Guevara’s involvement in the incident, there was no probability of a more positive outcome if the trial court had granted defendant’s Pitchess motion as to Guevara, even if there were relevant complaints in his file. Accordingly, the denial of the motion as to Guevara was harmless error.
By contrast, the People’s case rested entirely on the credibility of Fobbs, Cornejo and Javier. Cornejo linked defendant to the buy money. Javier, although he did not testify, also linked defendant to the buy money through Cornejo’s testimony that it was Javier who circled the serial number on the photocopy of the $20 bill (People’s Exhibit 1) to indicate that it matched the $20 bill retrieved from the gas station attendant. Also, People’s Exhibit 1 contains the handwritten notation: “D. Javier verified the serial numbers to the $20.” If Cornejo and Javier had been discredited, there was nothing else to link defendant to the buy money and there is a reasonable probability that the jury would have disbelieved that defendant ever gave Fobbs rock cocaine in exchange for a $20 bill.
The proper remedy is a conditional reversal with directions to the trial court to review in chambers the documents requested as to Cornejo and Javier and to issue a discovery order, if warranted. If the trial court determines that there is no relevant information, it may reinstate the judgment. If it determines that there is relevant information that should be disclosed, it must order disclosure and allow defendant an opportunity to demonstrate prejudice; if defendant demonstrates that there is a reasonable probability the outcome would have been different had the information been disclosed, the trial court must order a new trial. (Gaines, supra, 46 Cal.4th at pp. 180-181; see also People v. Gill (1997) 60 Cal.App.4th 743, 751.) If defendant does not demonstrate a reasonable probability of a different result, the court shall reinstate the judgment.
2. CALCRIM No. 300 Is Constitutional
Defendant contends he was denied his Fifth Amendment right against self-incrimination and to a jury verdict beyond a reasonable doubt as a result of the trial court instructing the jury with CALCRIM No. 300, which reads: “Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.” He argues the instruction improperly suggests that defendant should have testified and shifts from the prosecution its burden of proving its case beyond a reasonable doubt. We find no error.
This contention has been rejected by every one of our sister courts to consider it. (See People v. Golde (2008) 163 Cal.App.4th 101, 117; People v. Felix (2008) 160 Cal.App.4th 849, 858; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1189-1190 (Ibarra); People v. Anderson (2007) 152 Cal.App.4th 919, 927, 937-938; People v. Simms (1970) 10 Cal.App.3d 299 [construing the substantially similar CALJIC No. 2.11].) Appellant asks us to depart from their holdings, but we see no reason to do so.
As in those decisions, CALCRIM No. 300 is a correct statement of law, and the jury was properly instructed on the burden of proof, the presumption of innocence, and a defendant’s right not to testify. There was “no reasonable likelihood that the jury misunderstood CALCRIM No. 300. [Citations.] So we apply the usual presumption that jurors are able to correlate, follow, and understand the court’s instructions and reject [defendant’s] argument. [Citation.]” (Ibarra, supra, 156 Cal.App.4th at p. 1190.) Accordingly, we hold the jury was properly instructed.
In addition to CALCRIM No. 300, the jury was also instructed with CALCRIM No. 220, which reads: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proved the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” It was also instructed with CALCRIM No. 355, which reads: “A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.”
3. Sentencing
Defendant was sentenced to 22 years in prison, comprised of 10 years for cocaine sale (the five-year upper term doubled pursuant to the Three Strikes law), plus a consecutive six years pursuant to Penal Code section 667.5, subdivision (b) (one year for each of six priors), plus a consecutive six years pursuant to Health and Safety Code section 11370.2, subdivision (a) (three years for each of two priors). He contends it was error to: (1) deny his motion to strike the Three Strikes law prior conviction; and (2) use the fact of defendant’s recidivism both as an enhancement and to support the imposition of the upper term. We find no error.
A. Denial of the Motion to Strike the Three Strikes Law Prior Was Not an Abuse of Discretion
Defendant argues that denial of his motion to strike the Three Strikes law priors was an abuse of discretion because defendant was 46 years old at the time of sentencing, his last violent felony was in 1987 (20 years before the current offense), and since then most of his convictions have been drug related. He made similar arguments in his motion in the trial court.
Under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530 (Romero), a defendant who is subject to a second or third strike may move the court to “strike” the prior conviction in the interests of justice. The decision rests in the trial court’s discretion. In People v. Williams (1998) 17 Cal.4th 148, 161, our Supreme Court explained that in exercising its discretion, the trial court must determine whether “in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.”
To warrant reversal, there must be a showing that the trial court abused its discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373-375.) In other words, the trial court’s “decision [was] so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) The Three Strikes law creates a strong presumption that any sentence that conforms to the norms prescribed by the statute is both rational and proper but the sentencing norms established by the Three Strikes law may, as a matter of law, produce an arbitrary, capricious or patently absurd result under the specific facts of a particular case. (Carmony, at p. 377.)
Here, the trial court declined to strike the Three Strikes prior, explaining that defendant’s “background and prospects are not positive. [S]ince 1985, the defendant has been convicted of eight felonies and two misdemeanors. The report also shows two parole violations. He has been incarcerated in either state prison or county jail numerous times. There is no significant crime-free gap between 1985 and 2008. [¶] For all these reasons, the court declines to exercise its discretion pursuant to Romero and dismiss the strikes allegation.”
Defendant’s probation report reflects a criminal history that included convictions for a 1985 robbery, a 1986 drug offense, a 1987 robbery, a 1991 drug offense, a 1992 attempted escape, a 1994 misdemeanor under the influence, a 1994 misdemeanor vandalism, a 1994 drug offense, a 1997 drug offense, and a 2005 drug offense. Even though many of the more recent offenses were drug convictions, given the sheer number of convictions we cannot say as a matter of law that defendant was outside the scope of the Three Strikes law. The trial court’s sentencing decision was not arbitrary and therefore, not an abuse of discretion.
B. Imposition of the High Term Was Not an Abuse of Discretion
Defendant contends the trial court abused its discretion by using the fact of defendant’s extensive criminal history both as an enhancement and an aggravating factor in support of its selection of the high term. We disagree.
California Rules of Court, rule 4.421 sets forth factors the trial court may consider in making its sentencing choice. These include the number or increasing seriousness of the defendant’s prior convictions (rule 4.421(b)(2)); the fact that the defendant has served a prior prison term (rule 4.421(b)(3)); the fact that the defendant was on probation or parole when the crime was committed (rule 4.421(b)(4)); and defendant’s unsatisfactory performance on probation or parole (rule 4.421(b)(5)). The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. (§ 1170, subd. (b); People v. Brown (2000) 83 Cal.App.4th 1037, 1045.) But a single aggravating factor is sufficient to justify a sentencing choice. (Brown, at p. 1043.)
Here, in announcing its sentencing choice, the trial court explained that defendant was statutorily precluded from probation due to his “extensive criminal history and the fact that he was on parole at the time the crimes were committed. [¶] The court imposes the high term of five years in state prison. That term is doubled pursuant to the Three Strikes law for a total term of 10 years with respect to count 1.” Thus, one aggravating factor the trial court relied upon to select the upper term was the fact that defendant was on parole when this crime was committed (Cal. Rules of Court, rule 4.421(b)(4)). This single factor, which was unrelated to the prior conviction enhancements, was sufficient to support imposition of the upper term.
Thus, contrary to defendant’s assertion, the trial court stated its reasons for imposing the upper term.
DISPOSITION
The judgment is conditionally reversed; the trial court shall direct the custodian of records of the Los Angeles Police Department to produce the personnel file of Detectives Cornejo and Javier for an in camera review. If the in camera hearing reveals no discoverable information in the detectives files which would lead to admissible evidence helpful to the defense, the trial court shall reinstate the original judgment and sentence. If the in camera hearing reveals discoverable information which could lead to admissible evidence helpful to defense of the charge, the trial court shall grant the requested discovery, allow defendant an opportunity to demonstrate prejudice, and order a new trial if prejudice is demonstrated. In all other respects, the judgment is affirmed.
WE CONCUR: FLIER, J. LICHTMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.