Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from the judgment of the Superior Court of Los Angeles County. Paul A. Bacigalupo, Judge. Los Angeles County Super. Ct. No. TA082303.
John D. O’Loughlin for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant Norris Dajon Miller appeals from the judgment entered following a jury trial that resulted in his conviction of possession and sale of cocaine. He contends: (1) he was denied due process and a fair trial as a result of the trial court’s refusal to instruct on the uncharged offense of sale of a substance in lieu of a controlled substance; and (2) imposition of the upper term violated his Sixth Amendment right to a jury trial. Defendant also requests that we review the record of the trial court’s examination of the arresting officer’s personnel files made pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Because of sentencing error, we reverse in part and remand.
Defendant was charged with possession of cocaine (Health & Saf. Code, § 11351.5) and two counts of sale of cocaine (Health & Saf. Code, § 11352, subd. (a)); enhancements for prior convictions were also alleged, including one pursuant to the Three Strikes law (Pen. Code, § 667, subds. (b)-(i) and § 1170.12, subds. (a)-(d)). After finding defendant guilty of the substantive charges, the jury found true the enhancements in a bifurcated trial.
FACTUAL AND PROCEDURAL BACKGROUND
On November 22, 2005, after negotiating a purchase of cocaine from defendant, undercover Detective Osorio met defendant at a mutually agreed upon location; there, Osorio gave defendant $125 for an off-white substance that appeared to be cocaine base. Osorio later turned this substance over to Detective Fitchew, who booked it into evidence.
At the conclusion of this transaction, and in several subsequent telephone calls, Osorio discussed with defendant the purchase of more cocaine. After discussing larger amounts, defendant eventually agreed to sell Osorio 15 ounces of cocaine for $500 an ounce. When Osorio and defendant met again on November 30, 2005, defendant removed a plastic bag from his right front pocket and gave it to Osorio; looking inside the bag, Osorio saw an off-white substance that appeared to be rock cocaine. After returning the bag to defendant with the explanation that he needed to get the money, Osorio gave a signal to other officers to detain defendant.
In a search of defendant’s person, Detective Brown found two baggies of what appeared to be rock cocaine in defendant’s pockets, as well as a gram weighing scale. Brown turned over the baggies and scale to Detective Fitchew, who booked the items into evidence.
Subsequent scientific analysis established that the substances sold to Osorio by defendant on both occasions, as well as the substance found in defendant’s pockets on November 30, 2005, contained cocaine base. In a post arrest interview with Fitchew, defendant admitted selling cocaine to Osorio on both occasions.
But at trial, defendant testified that on both November 22 and 30, 2005, he sold Osorio a mixture of flour and baking soda, not cocaine. Defendant did so because Osorio was pressuring defendant to sell him cocaine. Defendant did not think selling “bunk” cocaine was a crime. Defendant denied admitting to Fitchew that he sold cocaine to Osorio.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Finding No Discoverable Material in the Arresting Officer’s Personnel Files
Defendant requests that we review, in accordance with the procedures set forth in People v. Mooc (2001) 26 Cal.4th 1216 (Mooc), the “ ‘Pitchess motion and moving papers’ reviewed by the trial court and the sealed transcript of the in camera proceedings to determine whether the trial court’s failure to disclose information in the deputy’s personnel file constituted an abuse of discretion.”
Although the Clerk’s Transcript did not include a copy of defendant’s Pitchess motion or a transcript of the in camera proceedings, we granted defendant’s motion to augment the record with these documents, which we have reviewed.
We review the trial court’s decision on the discoverability of material in police personnel files for abuse of discretion. (Mooc, supra, 26 Cal.4th at p. 1228; Fagan v. Superior Court (2003) 111 Cal.App.4th 607, 612.) To be entitled to appellate relief for a trial court’s abuse of discretion, a criminal defendant must show that the alleged injury is sufficiently grave to amount to a manifest miscarriage of justice. (People v. Andrade (2000) 79 Cal.App.4th 651, 654, fn. 1.) A miscarriage of justice should be declared only when the reviewing court is convinced after an examination of the entire case, including the evidence, that there is no reasonable probability the outcome of the trial would have been different absent the error. (People v. Champion (1995) 9 Cal.4th 879, 919, overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860.)
Here, in his Pitchess motion, defendant sought information from the personnel files of Los Angeles Sheriff’s Department Detectives Fitchew and Osorio “regarding incidents of fabrication of charges and evidence, dishonesty, improper tactics, false arrest and illegal search and seizure . . . .” On February 23, 2006, the trial court granted the motion as to “dishonesty, improper tactic and planting evidence only.” Immediately thereafter, the trial court reviewed the records produced by the Sheriff’s Department’s custodian of records in camera. The Reporter’s Transcript of that proceeding was filed under seal. In it, the custodian of records advised the trial court that there were no complaints against Osorio filed within the prior five years and that there were just two complaints filed against Fitchew. The trial court did not make copies of those complaints part of the sealed record, nor did it describe them except to note their dates (May 2, 2002 and January 8, 2004) and that each was “nondiscoverable.” Back in open court, the trial court reported that it had found “no discoverable hits and no discoverable items as to either deputies, . . . none whatsoever.”
Defendant does not appeal from the narrowed scope of the order granting his Pitchess motion.
The trial court erred in failing to make a record of what documents it examined before ruling on the Pitchess motion – either by making copies of those documents a part of the sealed record, or by describing the documents in a sufficient amount of detail to permit meaningful appellate review. (Mooc, supra, 26 Cal.4th at p. 1229.) However, under the circumstances here, the error was patently harmless. After all, defendant admitted offering to sell cocaine to Osorio; Osorio described the substance defendant gave to him as appearing to be rock cocaine; and there were no complaints whatsoever against Osorio. Brown, the officer who searched defendant after he was detained, was not the subject of the Pitchess motion and he too testified that the substance he found in defendant’s pocket appeared to be rock cocaine. Fitchew’s only role with respect to the substance was to book it into evidence. Under these circumstances, it is not reasonably probable defendant would have achieved a more favorable result even if he could have impeached Fitchew with complaints of Fitchew’s dishonesty, improper tactics, or planting evidence, discovered pursuant to defendant’s Pitchess motion.
B. Defendant Was Not Entitled to Instructions on the Lesser Related Offense of Selling a Substance in Lieu of a Controlled Substance
Defendant contends he was denied due process as a result of the trial court’s denial of his request that the jury be instructed with CALCRIM No. 2315, which defines the elements of a violation of Health and Safety Code section 11355 (§ 11355) [selling a substance in lieu of a controlled substance]. As we understand defendant’s argument, it is that he was entitled to the requested instruction because it pinpointed the theory of defense, which was that defendant’s “conduct amounted to sales of a substance in lieu of cocaine and not to sales of cocaine . . . .” We disagree.
“Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117-118 (Birks).) “[E]ven absent a request, and even over the parties’ objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citations.]” (Id. at p. 118.) However, a criminal defendant has no unilateral entitlement to instructions on lesser related offenses which are not necessarily included in the charged offenses. (Id. at p. 136.) This is because, among other flaws, allowing a defendant to unilaterally place an uncharged and nonincluded offense before the jury “may usurp the prosecution’s exclusive charging discretion, and may therefore violate the Constitution’s separation of powers clause.” (Id. at p. 113.)
In some circumstances, a trial court may be required to give a requested jury instruction that “pinpoints a defense theory of the case by, among other things, relating the reasonable doubt standard of proof to particular elements of the crime charged. [Citations.] But a trial court need not give a pinpoint instruction if it . . . merely duplicates other instructions [citation] . . . . An instruction that does no more than affirm that the prosecution must prove a particular element of a charged offense beyond a reasonable doubt merely duplicates the standard instructions defining the charged offense and explaining the prosecution's burden to prove guilt beyond a reasonable doubt. Accordingly, a trial court is required to give a requested instruction relating the reasonable doubt standard of proof to a particular element of the crime charged only when the point of the instruction would not be readily apparent to the jury from the remaining instructions.” (People v. Bolden (2002) 29 Cal.4th 515, 558-559.)
In People v. Valentine (2006) 143 Cal.App.4th 1383 (Valentine), the defendant was charged with robbery; he argued that he was entitled to instructions on the uncharged lesser-related offense of receiving stolen property because his theory of defense was that he received property he knew to be stolen but did not steal the property. (Id. at p. 1387.) The appellate court rejected this contention, noting that, under Birks, “California law does not permit a court to instruct on an uncharged lesser related crime unless agreed to by the prosecution.” (Valentine, at p. 1387.) Observing that the defendant’s theory “would turn Birks on its head,” the court explained that “the offense of receiving stolen property is not a defense to robbery; rather, it is a theory of criminal liability based on a different offense. Thus, the failure to give the instruction did not impinge on Valentine’s right to present a defense to robbery. It simply reflected the fact that the prosecutor chose not to file on the other charge. We do not suggest, however, that Valentine could not argue to the jury that his culpability was as one who was in possession of stolen property but not one who committed a robbery.” (Id. at p. 1388.)
Here, defendant was charged with Health and Safety Code section 11352, subdivision (a) (§ 11352(a)), which makes it a crime to sell a controlled substance, in this case cocaine base. Accordingly, pursuant to CALCRIM No. 2300, the jury was instructed: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant [sold, furnished, gave away, or transported] a controlled substance; [¶] 2. The defendant knew of its presence; [¶] 3. The defendant knew of the substance’s nature or character as a controlled substance; [¶] 4. The controlled substance was [cocaine base.] . . . .”
Although not charged with violation of section 11355, which makes it a crime to agree to sell a controlled substance and then sell “any other liquid, substance, or material in lieu of any such controlled substance,” defendant requested that the jury also be given CALCRIM No. 2315, which defines the elements of that uncharged offense. He argued that the instruction would allow the jury to “accept [defendant’s] position that the substance sold was not cocaine . . . .” The prosecutor objected on the grounds that violation of section 11355 was not a lesser included offense of the charged offense. After initially agreeing to give the instruction, the trial court eventually declined to do so. The trial court’s final ruling was correct.
As suggested by defendant, CALCRIM No. 2315 reads: “The defendant is charged with selling/transporting/administering/giving/furnishing/delivering a substance in lieu of cocaine base. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant agreed/consented/offered/arranged/negotiated to sell/transport/administer/give/furnish/deliver cocaine base, a controlled substance; [¶] AND [¶] 2. After doing so, the defendant sold/transported/administered/gave/furnished/ delivered a substance in lieu of cocaine base. . . .”
Because the charged offense did not include all the elements of a violation of section 11355, the latter is not a necessarily included offense within the former and defendant was therefore not entitled to instructions on section 11355 as a lesser related offense. (Birks, supra, 19 Cal.4th at p. 136; Valentine, supra, 143 Cal.App.4th at p. 1388.) In other words, the jury was properly limited to finding defendant guilty beyond a reasonable doubt of the charged offense or not guilty of any offense. As defendant was not entitled to a conviction of a lesser related offense that the prosecutor elected not to charge; he was not entitled to instruction on that uncharged offense.
We are not persuaded otherwise by defendant’s characterization of the requested instruction as a pinpoint instruction on the defense theory that the evidence established a reasonable doubt as to whether the substance he sold to Osorio was cocaine, an element of the charged offense. It was readily apparent from the instructions given that, to find defendant guilty of the charged offense, the jury had to find that the substance was cocaine beyond a reasonable doubt. (Cf. People v. Bolden, supra, 29 Cal.4th at p. 558.) As in Valentine, the failure to give the requested instruction did not impinge on defendant’s right to present his theory of defense; it simply reflected the fact that the prosecutor chose not to file on the section 11355 charge. Defendant could still argue to the jury that what he sold was not a controlled substance.
C. Imposition of the Upper Term Violated Defendant’s Sixth Amendment Rights
Defendant contends imposition of the upper term on count 1 violated his Sixth Amendment right to a jury trial because none of the aggravating circumstances relied upon by the trial court to select the upper term was found true by a jury beyond a reasonable doubt. We agree and remand for resentencing.
The People’s argument that defendant has forfeited this claim by failing to object at sentencing is without merit inasmuch as the sentencing hearing occurred before the United States Supreme Court decided that aspects of California’s sentencing scheme violated a defendant’s right to a jury trial. (See People v. Black (2007) 41 Cal.4th 799, 810-811 (Black).)
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely), the high court clarified that the “statutory maximum” for purposes of the right to a jury trial is the “maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” In Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856] (Cunningham), the court held that California’s Determinate Sentencing Law violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments because it assigns to the trial judge, rather than the jury, “the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence.” However, Blakely and Cunningham both reaffirmed that the right to a jury trial does not apply to the fact of a prior conviction. (Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, 127 S.Ct. at p. 868.)
Applying the rules announced in Apprendi, Blakely and Cunningham, our Supreme Court in Black held that the “fact of prior conviction” exception recognized by Apprendi and its progeny includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.]” (Black, supra,41 Cal.4th at p. 819.) For example, in Black, the court held that the exception includes the circumstance that the defendant’s prior convictions were numerous and of increasing seriousness. (Id. at pp. 819-820.) Moreover, the court in Black held that“as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, at p. 812.)
Here, the trial court articulated the following aggravating circumstances in support of its selection of the upper term on count 1:
· The crime involved planning and sophistication (Cal. Rules of Court, rule 4.421(a)(8)); and
· The crime involved a large quantity of contraband (rule 4.421(a)(10)).
Since neither of these circumstances was related to defendant’s prior convictions, imposition of the upper term violated defendant’s Sixth Amendment rights.
DISPOSITION
The judgment is affirmed as to the convicted offenses. The judgment is reversed as to the upper term sentence imposed on count 1. The sentence is vacated and the matter is remanded to the trial court for resentencing.
We concur:
COOPER, P. J., FLIER, J.