Opinion
NOT TO BE PUBLISHED
Superior Court County No. BA275880 of Los Angeles, Norman J. Shapiro, Judge,
Robert Bryzman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Bill Lockyer, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
A jury convicted appellant Jimmy Dominguez of carrying a concealed firearm (count 1) (Pen. Code, § 12025, subd. (a)(2)) and possession of a firearm by a felon (count 2) (§ 12021, subd. (a)(1)). Appellant admitted that he had suffered a prior "strike" conviction (§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served a prior prison term (§ 667, subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced appellant to four years in state prison, consisting of the middle term of two years on count 2, doubled due to the strike conviction. It imposed and stayed the sentence on count 1 pursuant to section 654 and struck the prior prison term enhancement. Appellant claims he is entitled to a Pitchess review to determine whether there were discoverable complaints against a police officer. We affirm, with directions to modify the abstract of judgment.
FACTS
Police Officer Paul Miller is a member of the gang enforcement detail for the Los Angeles Police Department. Also included in the detail were Officers Ryan Bellos, Carlos Savedra and Martin. At 9:15 p.m., on December 15, 2004, Miller and Bellos were patrolling an area known for gang activity. As Miller drove southbound on Maple Avenue, he and Bellos saw appellant standing on the corner of Maple and 36th Place. Appellant immediately looked in their direction and appeared startled. He removed a handgun from his waistband with his right hand and began running in the opposite direction.
The record does not contain Officer Martin's first name.
The officers left their car, took their flashlights with them and gave chase. Bellos radioed "code 6" to dispatch, indicating their location, using the handheld radio on his belt. He did not indicate that they were pursuing a man with a gun. They lost sight of appellant when he ran down a driveway leading to the rear of a residence on 167 East 36th Place. Five seconds later he reappeared, walking towards them with his hands up. Appellant dropped to his knees, and Bellos ordered him to place his hands on his head. Appellant complied, and Miller approached appellant to handcuff him. Appellant brought his hands off his head and began to stand up. Miller said, "Take it easy. Relax." Appellant shouted, "I am not going back. Fuck you, fuck you." Miller and Bellos each grabbed one of appellant's arms, pulled his arms behind his back and applied a "twist lock." Appellant continued to struggle, and the officers used their body weight to force him to the ground, where they applied handcuffs.
The officers stood appellant on his feet and Bellos radioed for an additional unit. They did not radio "415, man with a gun," because they had no time and did not transmit this information after appellant's arrest because he was in custody.
Appellant was searched, but the officers did not find a gun. They detained him in the backyard of 167 East 36th Place until Officers Savedra and Martin arrived and placed him in the patrol car. Martin remained with appellant while Miller, Bellos and Savedra searched the area for a gun.
Bellos told Savedra they were looking for a dark semiautomatic handgun, possibly nine millimeter. Savedra climbed a tree in the yard at 167 East 36th Place to look on the roof and saw a gun lying at the base of a tree in the adjacent yard. Miller testified that he saw a skid mark in the dirt, as if the gun had slid on the ground. The firearm was a heavily rusted nine-millimeter Ruger, but in working order. It was fully loaded with one live round in the chamber and 10 live rounds in the magazine. The gun was later identified as stolen.
The gun was recovered from the rear of a single family residence at 165 East 36th Place. The residence is separated from 167 East 36th Place by a chain link fence.
Appellant complained of pain to his left shoulder. Savedra and Miller took him to the hospital and then to the jail for booking.
DISCUSSION
Pitchess Hearing
Appellant filed a pretrial Pitchess motion to discover citizen complaints against Officers Bellos, Miller, Savedra and Martin concerning excessive force, bias, false arrest, planting evidence, fabrication of police reports, fabrication of probable cause and false testimony. (Pitchess v. Superior Court (1974) 11 Cal.3d 531; Evid. Code, §§ 1043-1045.)
Defense counsel attached a declaration, alleging that Bellos and Miller prepared a false police report and that Bellos testified untruthfully at the preliminary hearing about the circumstances leading to appellant's arrest. Counsel declared that the officers indicated that they saw appellant remove a gun from his waistband and run towards 167 East 36th Place, up the driveway and to the rear of the property. They reported to dispatch that they were in pursuit, but did not say they had seen a man with a gun. When Bellos left his patrol car to give chase, he pulled out his flashlight, rather than his gun. He did not remove his gun until he entered the rear of the property. Appellant alleged that Savedra and Martin planted a gun in the backyard, which they found "30-35 minutes after [appellant was] placed in the patrol car."
Defense counsel alleged that Bellos contradicted himself at the preliminary hearing, first testifying that appellant was on his knees when the gun was found, then stating that appellant was in the patrol car at that time. Counsel declared that civilian witnesses to the incident did not see appellant with a gun. He further alleged that, after appellant complied with the officer's order to drop to his knees and place his hands on his head, that Bellos and Miller "beat him to the point that [appellant] had to be transferred to California Hospital for injuries to his shoulder and ear."
At the hearing on the motion, the city attorney argued against the production of records. She conceded, however, that "there may be some good cause established regarding false reporting" as to Miller and Bellos and perjury as to Bellos due to his inconsistent testimony at the preliminary hearing and at trial. She argued that appellant's allegation was implausible as to Savedra. Since Bellos and Miller did not radio that there was a man with a gun, Savedra had no way of knowing this when he arrived at the scene to allegedly "plant" a stolen gun.
The trial court granted the Pitchess motion only as to Bellos and Miller. It indicated it would limit its review to allegations of false reporting, planting of evidence and fabrication of police reports and would not consider allegations of excessive force. On May 27, 2005, the court conducted an in camera hearing to review the personnel records of Miller and Bellos and found no discoverable evidence.
Appellant requests that we review the sealed reporter's transcripts of the in camera hearing and the sealed personnel records upon which the trial court relied in rendering its ruling. (See People v. Mooc (2001) 26 Cal.4th 1216, 1227-1231.) The trial court's ruling on the discoverability of citizen complaints is subject to our in camera review under an abuse of discretion standard. (People v. Hughes (2002) 27 Cal.4th 287, 330.) Based upon our review of the sealed documents, we conclude that the ruling was an appropriate exercise of discretion because the matters left undisclosed are not responsive to appellant's discovery requests.
Pitchess Motion as to Officer Savedra
To prevail on a Pitchess motion, the defendant must show "good cause" for discovery by demonstrating that 1) the information to be discovered is material to the pending litigation; and 2) the defendant has a "reasonable belief" that the governmental agency has the type of information sought. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016; City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83; Evid. Code, § 1043, subd. (b)(3).)
Materiality is a very low threshold requiring a "specific factual scenario" to support the defendant's claim and a "plausible factual foundation" for the allegation. (Warrick v. Superior Court, supra,35 Cal.4th 1011, 1020.) Discovery has been granted concerning the use of excessive force where both the defendant's declaration and the police report indicated the use of force in defendant's arrest (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d 74, 93); where officers were alleged to have planted evidence on the defendant to cover up the use of excessive force (People v. Gill (1997) 60 Cal.App.4th 743, 750-751); and where an officer and the defendant gave differing accounts of a high speed chase, leading to an allegation the officer fabricated facts in his police report. (People v. Hustead (1999) 74 Cal.App.4th 410, 416-417.)
In Warrick, the defendant was charged with possession of cocaine base for sale. According to the police report, he was in an area frequented by drug users when officers saw him holding a plastic baggie containing off-white solids. The police approached and the defendant fled, discarding 42 lumps of rock cocaine on the ground. After his arrest, a search of his person yielded an empty baggie and $2.75 in cash. (Warrick v. Superior Court, supra, 35 Cal.4th 1011, 1016-1017.) The defendant alleged that he was in the area to buy, rather than sell, cocaine. He saw the officers approach and fled, fearing arrest for an outstanding parole warrant. While fleeing, he ran past the actual seller and the crowd began pushing and shoving to retrieve the rock cocaine from the ground. The police falsely mistook him as the person who discarded the cocaine and falsely accused him of having done so. (Id. at p. 1017.) The court held that the defendant was entitled to discovery because the facts alleged in defense counsel's declaration were both specific and plausible, presenting "an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges." (Id. at p. 1026.) The defendant had "outlined a defense raising the issue of the practice of the arresting officers to make false arrests, plant evidence, commit perjury, and falsify police reports or probable cause." (Id. at p. 1027.)
Here, it is undisputed that appellant was in gang territory, saw the officers and fled. The police alleged that appellant pulled a gun from his pants and ran down a driveway and reemerged with his hands up. A fully loaded handgun was found in the area where appellant had disappeared.
Appellant's version of events was consistent with the police report, except for the allegation that he had a firearm. He points out that the officers did not radio that he was armed; upon seeing him, they pulled out their flashlights, rather than their guns; and no witnesses saw him with a handgun.
Respondent argues that we should follow our decision in People v. Thompson (2006) 141 Cal.App.4th 1312, in which we affirmed the trial court's denial of a Pitchess motion. In that case, an undercover narcotics agent purchased $10 worth of cocaine base from the defendant, using two $5 bills previously photocopied for this purpose. Officers positioned nearby saw the transaction and heard it through a one-way "wire." Uniformed officers arrived at the scene to make the arrest, and a search of the defendant yielded the two $5 bills. Defense counsel filed a declaration claiming the officers fabricated the events surrounding his arrest, but offered no facts to support his allegation. We concluded that the defendant did not establish good cause because he failed to present a plausible factual scenario. (Id. at p. 1316.)
Likewise, appellant has failed to establish good cause entitling him to a Pitchess review. He has not offered an explanation as to why Savedra would arrive at the scene to plant a gun when Miller and Bellos had not reported that he was armed. It is implausible that Savedra would have been carrying a loaded firearm, awaiting an opportunity to plant it at a crime scene. The trial court correctly ruled that Savedra's personnel records were not discoverable.
Correction of Abstract of Judgment
Respondent calls our attention to a clerical error in the abstract of judgment. In its pronouncement of judgment, the trial court sentenced appellant to four years in state prison, consisting of the middle term of two years on count 2, doubled due to the strike conviction. It stayed the sentence on count 1 pursuant to section 654 and struck the prior prison term enhancement. The minute order reflects the terms of the oral pronouncement. The abstract of judgment correctly states that appellant was sentenced to four years in prison, but does not correctly reflect how the trial court calculated the sentence.
DISPOSITION
The trial court is directed to modify the abstract of judgment, reflecting that appellant was sentenced to the middle term of two years for possession of a firearm by a felon (count 2) (§ 12021, subd. (a)(1)), doubled due to his prior strike conviction. The trial court shall forward the amended abstract to the Department of Corrections. The judgment is otherwise affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.