Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Bob Bowers, Judge. Los Angeles County Super. Ct. Nos. BA295113 & 4WL03945
Syda Kosofsky, 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, Lawrence M. Daniels and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Appellant was arrested in December 2005 after police officers in an observation post near 5th and Crocker Streets in Los Angeles saw her exchange a plastic bindle of cocaine for cash from another female. She was charged with selling cocaine (Health & Saf. Code, § 11352, subd. (a)) in case number BA295113. Appellant was also on probation for a 2005 conviction for forgery and burglary in case number 4WL03945. (Pen. Code, §§ 459, 475, subd. (c).) Following a jury trial, in which she was found guilty of selling cocaine, the court placed her on three years’ probation and ordered her to serve 120 days in the county jail as a term and condition of probation. She was found in violation of her probation in case number 4WL03945, and sentenced to a concurrent term of 120 days. She appeals from both judgments, contending that this court should review the transcripts of two in camera hearings held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 and Evidence Code section 1040 in order to determine whether the trial court properly complied with procedural requirements. We have reviewed the transcripts and affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to trial, appellant requested police records relating to allegations of false arrest, fabrication of evidence, false testimony, and falsification of police reports against the two officers who observed the transaction, Officers Salvador Reyes and Alex Pozo.
On April 18, 2006, the court conducted an in camera hearing with a representative from the Los Angeles Police Department. He presented the files for Officer Reyes and Officer Pozo which included records of complaints, as well as their personnel files. The court reviewed each of the complaints and the personnel files for each officer, and ordered some of the complaints to be disclosed to the defense under a protective order.
On August 10, 2006, another in camera hearing was held after the prosecutor told the court that the police did not want to reveal the location of the officers’ observation post because it was still being used, and there was a public safety issue involved. Defense counsel offered to keep the location confidential and to seal the part of the record in which she cross-examined the police officer on the location of the observation post. Officer Reyes had an in chambers discussion with the court, during which he revealed the location of the observation post and outlined the public safety issues that required him to invoke the privilege. After speaking with Officer Reyes, the court called counsel into chambers and initially indicated that it would order the officer to reveal the location to counsel, who were ordered not to divulge that location to anyone else. But after further argument by counsel, the court decided not to compel the officer to reveal the exact location of the observation post citing the other evidence in the case that tended to corroborate the officer’s testimony of a sale. Defense counsel was allowed to question the officer with regard to the distance and elevation from which he made his observations.
Trial then commenced and both attorneys questioned Officer Reyes extensively on the nature of his observations. Reyes testified that he was “somewhere in the vicinity of 5th Street and Crocker Street,” where he had often gone to make narcotics arrests. It was a clear day and he noticed appellant because she “was dressed fairly clean.” He was able to describe her clothing in detail and could see her without binoculars. He saw a female approach appellant. With binoculars, he could see folded currency in the female’s hand and the hand-to-hand exchange between the female and appellant of the cash for a plastic bindle containing what appeared to be cocaine. Reyes maintained visual contact of the female as she walked away from appellant. He broadcast a description of the female and requested that she be detained. Reyes did not lose sight of the female until she was detained by other officers about 30 seconds after his broadcast. When Reyes refocused his attention on appellant, he saw her walking away. He broadcast appellant’s description to other officers in a nearby chase unit.
On cross-examination, Officer Reyes said he had been patrolling that area for four years and was familiar with some of the drug sellers in that area, having made approximately 500 arrests. His observation post was 70 feet away and elevated 20 feet, about two-to-three stories above street level. The street was busy with pedestrians but no one walked in front of the two females and he could see what appeared to be multiple off-white rocks in the bindle with the binoculars, but he did not see where appellant got the drugs or where she put the money.
Officer Thomas Brown testified that he was assigned to a chase unit near 5th and Crocker in an unmarked vehicle in plain clothes, and following Reyes’s broadcast, took appellant into custody. She had $62 in cash, consisting of six $5 bills and thirty-two $1 bills. She did not have any drugs or narcotics paraphernalia.
Officer Chris Luna was one of the officers who detained the female involved in the hand-to-hand exchange with appellant. He searched inside the right front pocket of her shorts and recovered a plastic bindle that contained a rock resembling cocaine.
A criminalist tested the substance and determined it was rock cocaine.
Appellant’s mother testified that she went with appellant to the area to look for a relative who was homeless. She left appellant for a few minutes when appellant sat down on a crate to rest. She saw a homeless person approach appellant, and appellant handed the person a cigarette. Appellant’s mother walked toward her car, and lost sight of appellant. When she got to the car, some strangers told her that appellant had been arrested.
Appellant testified that she had $35 in cash with her that day and her mother gave her an additional $40. She said that they had gone to the area to look for a relative and that a homeless person had approached her as she sat on a crate. She gave the person a cigarette.
Appellant asserts she cannot determine if the trial court properly conducted the in camera hearings or ordered disclosure of all appropriate complaints, as the transcripts are sealed. She requests that this court independently review the transcripts.
DISCUSSION
I. Pitchess Motion
The information sought in a Pitchess motion must be recent, relevant, and described with some specificity. (People v. Mooc (2001) 26 Cal.4th 1216, 1226-1227.) “This specificity requirement excludes requests for officer information that are irrelevant to the pending charges. [Citation.] And it enables the trial court to identify what types of officer misconduct information, among those requested, will support the defense or defenses proposed to the pending charges. This inquiry establishes the statutorily required materiality prong of the good cause showing that a defendant must make to receive in-chambers review of potentially relevant officer records.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021-1022.)
“Section 1045 requires in-chambers record review by the trial court, permits that court to issue an order protecting the officer against ‘unnecessary annoyance, embarrassment or oppression’ (subd. (d)), and requires the trial court to limit the use of any records that are disclosed. By doing so, the section maintains a balance between the officer’s legitimate privacy interests and the criminal defendant’s constitutionally guaranteed right to a fair trial. (People v. Mooc, supra, 26 Cal.4th at p. 1227.)” (Warrick, supra, 35 Cal.4th at pp. 1027-1028.)
We have reviewed the sealed transcript of the April 18, 2006 hearing during which the court reviewed complaints and the personnel records of Officers Pozo and Reyes for the preceding five years. On the record, it discussed each of the complaints filed against the officers and ordered those records which were relevant to appellant’s claim of officer fabrication produced, subject to a protective order. We are satisfied that the court conducted a thorough review of the records and that those records which were timely and relevant to appellant’s claims were ordered produced. We find no abuse of discretion in the trial court’s refusal to release additional information.
II. Evidence Code Section 1042
Evidence Code section 1040 provides that a public entity has a privilege to refuse to disclose “information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed to the public . . . .” (Subd. (a).) Evidence Code section 915 provides that when a court is ruling on a claim of official information privilege, “the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers . . . . If the judge determines that the information is privileged, neither the judge nor any other person may ever disclose, without the consent of a person authorized to permit disclosure, what was disclosed in the course of the proceedings in chambers.” (Subd. (b).) Pursuant to Evidence Code section 1042, the court must order disclosure of the asserted privileged information if it deems the information material to the controversy at issue. (People v. Walker (1991) 230 Cal.App.3d 230, 236.)
The hearing was conducted after the prosecutor informed the court and opposing counsel that the police officer was planning to invoke “the privilege” regarding the location of the observation post. Defense counsel requested that the location be disclosed to her, or, in the alternative, that the court conduct an in camera hearing to determine whether disclosure was warranted.
The People argue that appellant waived any right to object to the testimony because counsel did not object to Reyes’s testimony or request that it be stricken. Appellant argues that by requesting disclosure of the observation post and seeking an in camera hearing on the issue, she preserved her right to raise this issue on appeal. We agree. (See People v. Crittenden (1994) 9 Cal.4th 83, 127.)
Citing People v. Montgomery (1988) 205 Cal.App.3d 1011, appellant contends that this court must review the transcript of the in camera hearing in order to insure that her due process right to disclosure was protected. We agree. We have reviewed the sealed transcript, which contains both the reason for the officer’s claim of privilege and the precise location of the observation post.
Initially, we note that appellant fails to explain why disclosure of the exact location of the observation post is material to her defense. Appellant has “the burden of showing that in view of the evidence, there was a reasonable possibility that the location could constitute material evidence on the issue of guilt which would result in [her] exoneration.” (People v. Walker, supra, 230 Cal.App.3d at p. 238.) In other words, at the very least, there must be a showing that there is some point within the surveilled area that the officer could not have seen because of an obstruction. (See People v. Garza (1995) 32 Cal.App.4th 148, 154.) Trial counsel merely suggested that the information was necessary to test the officer’s testimony, and appellate counsel offers no further justification for disclosure.
In any event, an evaluation of the facts of this case leads us to conclude that the trial court properly upheld the officer’s claim of privilege. The events took place on a clear day. Officer Reyes had an unobstructed view of the sale from a distance of 70 feet. Although he was above street level, he had no difficulty seeing the parties to the transaction with the unaided eye. He utilized binoculars when he observed the currency in the buyer’s hand, the bindle in appellant’s hand, and the exchange. The buyer was detained approximately a minute after the exchange, and was found to have a bindle of rock cocaine in her possession.
In People v. Haider (1995) 34 Cal.App.4th 661, the officer observed a drug transaction from a rooftop that was about 100 to 120 feet away. It was a sunny day, and the officer viewed the scene through binoculars. Nothing obstructed the officer’s line of sight. Several minutes after the exchange, the buyer was approached by two officers, whereupon he dropped a piece of rock cocaine and a cocaine pipe. (Id. at p. 664.) The court, relying solely on the fact that the officer had an unobstructed view of the transaction with high-powered binoculars on a sunny day, found the trial court properly upheld the claim of privilege under Evidence Code section 1040 and declined to strike the officer’s testimony. (Id. at p. 669.)
We find Haider persuasive. Here, Officer Reyes had a similar ability to observe the transaction. His observations were corroborated by the later detention of the buyer. Moreover, defense counsel was given an ample opportunity to question the officer regarding the other specifics of his observation post, including the fact that the location was above street level. The officer’s refusal to disclose the exact location of the observation post did not deprive appellant of a fair trial.
The court properly conducted an inquiry into the officer’s claim of privilege, and its ruling to uphold the privilege and to allow Officer Reyes’s testimony did not constitute an abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J. MANELLA, J.