Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 06F06443, 07F08735
ROBIE, J.
In case No. 06F06443, defendant Defrantze L. Noel pled no contest to possession of a controlled substance in exchange for the dismissal of other charges and Proposition 36 probation. On August 28, 2006, the trial court sentenced defendant to 16 months in prison, suspended execution of sentence, and placed defendant on probation.
In case No. 07F08735, a jury found defendant guilty of selling a controlled substance, and the trial court found he had a prior drug conviction and four prior prison terms. The trial court sentenced defendant to prison for 11 years in this case and lifted the stay on the previously imposed 16-month sentence in case No. 06F06443, but ordered that sentence to be served concurrently. Defendant timely appealed.
Defendant contends the trial court should have granted his pro. per. motion to inspect the personnel records of 13 peace officers, a so-called Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.) We disagree. Defendant failed to make a threshold showing warranting an in camera review of these records. Defendant is, however, entitled to additional presentence credits. We shall modify the judgment and affirm.
FACTS AT TRIAL
Sacramento City Police Officer Lilia Alonso testified that around 8:45 a.m. on April 3, 2007, she was working undercover at McClatchy Park with Detective Roman Murrietta. She was wearing a transmitter and had marked “buy” money. They “walked straight through the park toward the amphitheater, ” “a known narcotic hangout.” She asked a couple if she could buy “black, ” meaning heroin. As she spoke with the couple, defendant approached Detective Murrietta, and Officer Alonso asked him if he knew where she could find “black.”
Defendant told Officer Alonso that he recognized her “from downtown” where he sold her “white” or “cream, ” meaning cocaine, but she said she wanted “black.” Officer Alonso did not recognize defendant, but conceded that on March 6, 2007, she had bought cocaine from a man named Beasley, and had “contacted” someone earlier that day but had no memory of who he was and could not say that it was not defendant. Officer Alonso sat on a bench, and defendant placed a clear plastic baggie with a black substance in it on the bench next to him. Then he gestured toward the baggie “and he said, ‘There.’” Officer Alonso dropped a recorded $10 bill next to the baggie and picked up the baggie, then she and Detective Murrietta walked away, signaled to other officers, and gave the baggie to Detective Ashley Englefield, the lead officer.
About 20 to 25 minutes later, Officers Adam Cunningham and Michael Frazer showed Officer Alonso photographs of defendant, whom she identified as the drug seller. In her report, Officer Alonso described defendant as wearing a black hooded sweatshirt, but photographs of him that day show him in a black jacket with no hood.
Detective Murrietta testified that the goal was to buy drugs, have other officers use a ruse to identify the seller -- so as not to compromise the undercover operation -- then obtain arrest warrants later “and arrest a bunch of people” all at once. He saw defendant place the baggie on the bench, saw Officer Alonso put the $10 bill on the bench, then she “grabbed” the baggie and they walked away.
Detective Englefield identified exhibit 4 as a photocopy of a $10 bill that had been given to Officer Alonso. She heard Officer Alonso’s radio signal after the sale, and Officer Alonso gave her a bindle of heroin.
Officer Frazer testified that he was working with Officer Cunningham, and after receiving a description of a male and female involved in the sale, they stopped the couple and he photographed them. The male was defendant, and the female --Christie Risso -- had the recorded $10 bill. Defendant had no drugs or wads of money. The $10 bill was returned to Risso, and both were released.
Defendant presented no evidence. In argument, counsel emphasized the presumption of innocence and the People’s high burden of proof, and argued there was a gap in the evidence between the sale as described by Officer Alonso, and Officers Frazer and Cunningham contacting defendant and Risso.
DISCUSSION
I
Defendant’s Pitchess Motion Was Properly Denied
We first describe the procedural background of defendant’s pro. per. Pitchess motion and then explain why it lacked merit.
The relevant complaint, later deemed an information, was filed on September 4, 2007, and alleged defendant sold heroin on or about April 3, 2007. This was a “re-file” of a case dismissed due to a delay in getting fingerprint results before the preliminary hearing.
On November 7, 2007, after defendant had been held to answer, defendant filed his pro. per. Pitchess motion. He sought discovery of the personnel files of 13 peace officers, essentially, every officer whose name appeared in the police reports describing the buy-bust operation, which defendant attached to the motion.
In his motion, defendant claimed that on March 6, 2007, he was speaking with some people by the Alkali Flats light rail station, when Officer Alonso asked him if he knew where to get rock cocaine, someone identified her as an officer, and she was threatened. Defendant “intervened and pulled” her to safety, and told her that everyone knew she was an officer. On April 3, 2007, after an argument with his girlfriend, defendant went to McClatchy Park and saw Officer Alonso, but mistook her for his girlfriend. He approached her, but was stopped by a “Mexican male (later identified as Officer Murrietta).” “The defendant, on recognizing Officer Alonso, stated, ‘I remember you from downtown.’ Officer Alonso, then bent down (as if she had dropped something and was retrieving it) stood up and then left.” Shortly thereafter, defendant saw his girlfriend being arrested and when he went to inquire, he was detained. His girlfriend, who did not provide a declaration to support defendant’s motion, was not charged with any crime and a $10 bill alleged to be marked drug money was not seized.
At the preliminary hearing, a transcript of which was attached to defendant’s Pitchess motion, defendant had described part of this story in argument, but it was not supported by any testimony. Officer Lilia Alonso testified she had been working undercover on April 3, 2007, in a “buy walk” operation. She had “prerecorded money” and was wearing a wire. She was in McClatchy Park that morning when she saw defendant. She asked if he had “black, ” which meant heroin. Defendant replied that he knew her from a prior transaction and “the last time I had purchased from him I asked for white, which means cocaine base. And he said, oh, this time you want black?” She asked for a “dime” or $10 worth, and defendant sat down and placed an object on a bench. She dropped $10 in recorded money, picked up the object from the bench, left with Officer Murrieta, then signaled other officers. Officer Frazer later told her that defendant had been stopped in the company of a white female, who had the $10 in her possession, but he was not arrested at that time. A criminalist tested the substance and found it contained both heroin and cocaine, indicating the heroin may have been in contact with packaging that had contained cocaine. On cross-examination at the preliminary hearing, Officer Alonso admitted working a “buy/bust program” downtown, but did not remember seeing defendant then.
The city’s opposition conceded the motion as to Officer Alonso: The City explained that the motion was largely identical to a motion defendant had filed in the dismissed case, as to “which good cause was found only for the character trait of dishonesty with respect to Officer Alonso (Badge No. 0505).” When Officer Alonso’s record was reviewed in camera in that case, no discoverable information had been found.
The trial court ruled: “It does not appear that with regard to the current matter pending before this court, which is a supplemental motion, that good cause has been stated as required... to justify in camera review. [¶] The court will deny the Pitchess motion at this time for records requested in this particular motion. [¶] Other records have previously been awarded to Mr. Noel.” The last sentence refers to a discovery ruling, unrelated to the Pitchess motion.
Defendant contends that because he denied handling drugs or money, and asserted the narrative provided by the police was fabricated, he showed “good cause” for discovery of the personnel records of all the officers involved.
“To show good cause as required by [Evidence Code] section 1043, defense counsel’s declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses. These requirements ensure that only information ‘potentially relevant’ to the defense need be brought by the custodian of the officer’s records to the court for its examination in chambers.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024.) The defense declaration need not provide a motive, but need only describe a “‘plausible’ factual foundation” for the claim of “specific police misconduct that is both internally consistent and supports the defense proposed to the charges.” (Id. at pp. 1025-1026.)
However, “Warrick did not redefine the word ‘plausible’ as synonymous with ‘possible, ’ and does not require an in camera review based on a showing that is merely imaginable or conceivable and, therefore, not patently impossible. Warrick permits courts to apply common sense in determining what is plausible, and to make determinations based on a reasonable and realistic assessment of the facts and allegations.” (People v. Thompson (2006) 141 Cal.App.4th 1312, 1318-1319 (Thompson); see also Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039 [trial court is afforded discretion in ruling on a Pitchess motion].)
The Thompson case, just quoted, arose on similar facts. The police version was that an officer bought $10 worth of drugs from Thompson in exchange for two marked $5 bills, as other officers observed the transaction, both visually and through a “wire, ” and then arrested Thompson, finding the marked bills on him. (Thompson, supra, 141 Cal.App.4th at p. 1315.) Thompson’s motion alleged the officers arrested him because he was in an area being swept, and when they learned he had a criminal record, they fabricated the drug transaction. (Id. at p. 1317.)
The Thompson court upheld denial of the Pitchess motion, stating in part: “This showing is insufficient because it is not internally consistent or complete. We do not reject Thompson’s explanation because it lacked credibility, but because it does not present a factual account of the scope of the alleged police misconduct, and does not explain his own actions in a manner that adequately supports his defense. Thompson, through counsel, denied he was in possession of cocaine or received $10 from Officer Saragueta. But he does not state a nonculpable explanation for his presence in an area where drugs were being sold, sufficiently present a factual basis for being singled out by the police, or assert any ‘mishandling of the situation’ prior to his detention and arrest. Counsel’s declaration simply denied the elements of the offense charged.” (Thompson, supra, 141 Cal.App.4th at p. 1317.) The court elaborated on this as follows;
“In essence, his declaration claims that the entire incident was fabricated and, by inference, that the police officers conspired to do so in advance. Thompson is not asserting that officers planted evidence and falsified a police report. He is asserting that, because he was standing at a particular location, 11 police officers conspired to plant narcotics and recorded money in his possession, and to fabricate virtually all the events preceding and following his arrest. The officers were not called upon to exaggerate or forget certain facts, or make assertions based on assumptions and inferences. The officers agreed to completely misrepresent what they saw and heard as percipient witnesses.
“We are aware that Thompson need not present a factual scenario that is reasonably likely to have occurred or is persuasive or even credible. (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1025-1026.) Further, we cannot conclude that Thompson’s scenario is totally beyond the realm of possibility. Thompson’s denials ‘might or could have occurred’ in the sense that virtually anything is possible.” (Thompson, supra, 141 Cal.App.4th at p. 1318; see People v. Sanderson (2010) 181 Cal.App.4th 1334, 1340-1341 [applying Thompson].)
While it is always possible one or more peace officers did not tell the truth, in this case, as in Thompson, it defies common sense that over a dozen officers conspired to falsely accuse defendant of selling $10 worth of heroin. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992 [“Lewis’s moving papers alleged one or more grandiose conspiracies to frame and murder him. The trial court did not abuse its discretion” in denying motion].) Defendant’s motion “did not show that a police conspiracy to... frame him ‘could or might have occurred.’” (Ibid; cf. People v. Gill (1997) 60 Cal.App.4th 743, 750 [in camera review warranted where defendant alleged one officer planted drugs to cover up his use of excessive force].)
Defendant points to three purported discrepancies that he contends were material to the issue of good cause. None of these points add weight to his motion. First, he contends Officer Alonso changed her testimony about the date of the incident. In support he cites a passage in the preliminary hearing transcript that merely shows she misspoke when questioned about the date. Second, he contends she claimed not to remember him from a purported prior sale. This is not a discrepancy in her testimony, it merely shows she did not corroborate defendant’s story. Third, he claims it is “implausible” that the officers would not have taken the $10 bill from Risso when they claimed to have found the marked bill in her possession. However, it was not implausible for the officers to simply identify defendant and Risso, but not disclose the undercover operation by arresting them that day.
The critical problem with defendant’s declaration is its failure to provide a plausible, coherent, explanation of the events in which over a dozen officers lied about a $10 heroin sale. Assuming defendant knew Officer Alonso from a prior transaction, and had counseled her that her identity as a peace officer was known, we fail to see how that would cause her to falsify a report against him, far less how it would cause the other officers to lie. Thus, as in Thompson, we cannot say the trial court abused its discretion in concluding defendant had failed to proffer a plausible explanation justifying an in camera review of the officers’ personnel files.
In the case of Officer Alonso, defendant suggests the trial court failed to exercise its discretion. The trial court stated in part that “It does not appear that with regard to the current matter pending before this court, which is a supplemental motion, that good cause has been stated as required... to justify in camera review.” (Italics added.) This passage can be read to mean that the trial court thought that defendant’s motion was in some way dependent on or supplemental to the Pitchess motion in the dismissed case. In that case, Judge DeAlba had found good cause to review Officer Alonso’s records, reviewed them in camera, and found nothing disclosable therein. This fact, coupled with the city’s concession as to Officer Alonso -- evidently based on the prior ruling -- arguably led the trial court into failing to reconsider the Pitchess issue as it pertained to Officer Alonso.
However, the motion before Judge Ahern, which is the only motion at issue in this appeal, failed to show good cause for an in camera review, for the reasons we explained. Therefore, even if we read the record to mean he did not consider the motion as it pertained to Officer Alonso, the failure to exercise such discretion was harmless because no good cause for an in camera review was shown by defendant’s declaration. The fact Judge DeAlba may have granted a different Pitchess motion, and the fact the city did not oppose this motion as to Officer Alonso, does not cure the deficiency of defendant’s declaration.
II
Defendant Is Entitled To Additional Custody Credits
After discussing conduct credits in detail with defendant, the trial court awarded him 616 actual credits and 308 conduct credits.
Pursuant to this court’s miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue of whether amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively. We conclude they apply to appeals pending on January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment lessening punishment applies to acts committed before its passage if conviction is not final]; People v. Hunter (1977) 68 Cal.App.3d 389, 393; People v. Doganiere (1978) 86 Cal.App.3d 237, 329.)
The Supreme Court has granted review to resolve a split in authority over whether the January 2010 amendments to Penal Code section 4019 apply to pending appeals. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [giving retroactive effect to amendments]; accord, People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; contra, People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Rodriguez (2010) 182 Cal.App.4th 535, review granted June 9, 2010, S181808.)
Defendant’s adult record does not contain any disqualifying convictions. (Pen. Code, § 4019, subds. (b), (c); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Although defendant has a juvenile robbery adjudication, the record does not show that he was 16 when he committed that crime, therefore it does not count as a strike conviction. (Pen. Code, § 667, subd. (d)(3)(A).) Therefore, defendant having earned 616 days of actual credit, is entitled to 616 days of conduct credit. We modify the judgment to award defendant 616 days of actual credit and 616 days of conduct credit.
DISPOSITION
The judgment is affirmed as modified. The trial court is directed to prepare a new abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
We concur: HULL, Acting P. J. BUTZ, J.