Opinion
H036349
12-15-2011
THE PEOPLE, Plaintiff and Respondent, v. SERGIO FRAGOZO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS080963)
1. INTRODUCTION
On July 31, 2007, a correctional officer at the Correctional Training Facility at Soledad found a bindle containing a usable amount of heroin in the right pocket of shorts worn by inmate defendant Sergio Fragozo. Facing a charge of the unauthorized possession of heroin while in prison (Pen. Code, § 4573.6) with a strike enhancement allegation of a 1997 conviction of the serious felony of burglary (Pen. Code, § 1170.12), defendant waived a jury trial on the condition that his maximum sentence would be double the lower term. He was convicted as charged after a court trial, whereupon he admitted the prior serious felony conviction. He waived preparation of a probation report and was sentenced to four years in prison, the lower term of two years doubled due to the prior strike.
On appeal, defendant asks us to review the trial court's denial of his Pitchess motion to discover information in the personnel files of correctional officers. We have done so and find no abuse of discretion. He also asserts that the trial court should have sustained his chain of custody objection to the admission of heroin at trial. As we will explain, this objection was irrelevant in light of defendant's stipulation to the nature of the substance recovered by the correctional officer. For the reasons stated below, we will affirm the judgment.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
2. THE PROCEEDINGS
Prior to trial, defendant sought discovery through a motion and amended motion of any information in the personnel files of Correctional Officers Ramon, Holguin, Bann, and Archuleta that indicated their tendencies to plant or mishandle evidence, fabricate charges, or perform inadequate investigations. At a hearing on March 24, 2010, defendant dropped his request for discovery against Ramon. The court initially found a sufficient showing to require an in camera hearing as to the other three officers. After conducting an in camera review the same day, the trial court denied disclosure to defendant, finding that there were no complaints against Holguin, Bann, or Archuleta.
At trial, Correctional Officer Holguin testified that, on the morning of July 31, 2007, he stopped and pat-searched defendant in the yard at the Soledad Correctional Training Facility. He did so at the request of Correctional Officer Bann, who was watching the prison yard from a tower through binoculars and saw defendant put something into his short's pocket after a hand-to-hand exchange with another inmate, Ralph Ochoa. Holguin found a black substance in a clear plastic wrap in the right pocket of defendant's shorts. Defendant stipulated in writing through his counsel that "[t]he bindle which was observed and recovered by Officer Holguin contains heroin, in an amount sufficient for use."
Defendant did not testify. Ochoa, who is serving a life term under the "Three Strikes" law, testified that defendant is an acquaintance. Ochoa was in prison on the date in question and he gave defendant some toilet paper in the yard that day. He did not give defendant drugs. Ochoa had previously told defense counsel that he did not give defendant anything that day.
Holguin further testified that, after he removed the bindle from defendant's pocket, he removed his own glove, put the substance in his glove in his pocket, removed it from his pocket, put it in an envelope (trial Exhibit 4), put the smaller envelope into a larger envelope (trial Exhibit 3), signed the larger envelope, and left it with a prison security squad. Holguin identified the wrapped substance at trial as what he took from defendant.
The trial court sustained an objection to anticipated testimony from Officer Archuleta about finding a syringe in defendant's cell.
Correctional Officer Parker testified that she brought an evidence envelope (trial Exhibit 3) to court from the correctional training facility. She explained that the writing on the envelope was there to establish the chain of custody. Exhibit 3 contained an envelope that was Exhibit 4. In the smaller envelope was a small plastic bag containing heroin.
Defense counsel objected to Parker's statement as lacking foundation. The prosecutor pointed out there was a stipulation. Defense counsel stated, "It is more than just a lack of foundation regarding the heroin. It is a lack of foundation where it even came from."
Officer Parker explained that, whenever evidence is moved, someone signs the envelope containing it in order to establish the chain of custody. According to the label, Officer Holguin placed the envelope of heroin into the evidence envelope. Parker recognized the signatures on Exhibit 3. She removed it from the evidence locker and took it to the Department of Justice (DOJ). There were DOJ signatures on the envelope. She had seen the DOJ signature before but did not know the person or the name.
After the close of testimony, defendant argued in part, "there is a chain of evidence issue. There was never a witness brought in from the Department of Justice to say whether they had it or not. There was no testimony as to that particular item as to whose signature that is. [¶] So we don't know what happened with that piece of evidence at all during that period of time." Defense counsel argued that the stipulation between the parties was "just the contents of what it is; not the fact there was a complete chain of evidence. So we would object regarding the credibility of that."
The trial court concluded that Officers Bann and Holguin were both credible and Ochoa was neither trustworthy nor truthful. The trial court found beyond a reasonable doubt that defendant did commit the crime charged.
3. THE CHAIN OF CUSTODY OBJECTION
On appeal, defendant asserts that the trial court erred in overruling his chain of evidence objection. The prosecutor "failed to establish a continuous chain of possession of the substance resembling heroin that correctional officers seized from [defendant] at the California [sic] Training Facility and the substance testing positive for heroin returned from the Department of Justice." If the objection had been sustained, he argues, there would not have been the "necessary foundation for the admission of 'vital' demonstrative evidence"—the bindle of heroin—at trial. And, without the heroin in evidence, there would have been insufficient evidence to support the conviction, so the error was prejudicial. As we will explain, the false premise of this argument is that the prosecution was required to produce at trial the item seized from defendant.
"The essential elements of unlawful possession of a controlled substance are 'dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character.' " (People v. Martin (2001) 25 Cal.4th 1180, 1184.) These same elements are part of the crime described by Penal Code section 4573.6, which prohibits the unauthorized possession of a controlled substance in any state prison. (People v. Carrasco (1981) 118 Cal.App.3d 936, 947.)
Penal Code section 4573.6 states: "Any person who knowingly has in his or her possession in any state prison, prison road camp, prison forestry camp, or other prison camp or prison farm or any place where prisoners of the state are located under the custody of prison officials, officers, or employees, or in any county, city and county, or city jail, road camp, farm, or any place or institution, where prisoners or inmates are being held under the custody of any sheriff, chief of police, peace officer, probation officer, or employees, or within the grounds belonging to any jail, road camp, farm, place or institution, any controlled substances, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming controlled substances, without being authorized to so possess the same by the rules of the Department of Corrections, rules of the prison or jail, institution, camp, farm or place, or by the specific authorization of the warden, superintendent, jailer, or other person in charge of the prison, jail, institution, camp, farm or place, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years.
"The prohibitions and sanctions addressed in this section shall be clearly and prominently posted outside of, and at the entrance to, the grounds of all detention facilities under the jurisdiction of, or operated by, the state or any city, county, or city and county."
Contrary to defendant's implicit premise, proving that a person possessed a controlled substance does not require presenting the substance at trial. "[T]he nature of a substance, like any other fact in a criminal case, may be proved by circumstantial evidence." (People v. Sonleitner (1986) 183 Cal.App.3d 364, 369.) "The prosecution need not physically produce the narcotic. It may prove that the substance was a narcotic by the testimony of the user and by the testimony of a doctor that, in his opinion, the substance used was a narcotic." (People v. Tipton (1954) 124 Cal.App.2d 213, 217.) The nature of a drug may also be established by the testimony of an experienced user alone without other expert confirmation (see People v. Winston (1956) 46 Cal.2d 151, 155), by the testimony of an experienced arresting officer (People v. Marinos (1968) 260 Cal.App.2d 735, 738,) or by the testimony of the officer who located the substance in the defendant's possession and the chemist who analyzed the substance (People v. Munoz (1961) 198 Cal.App.2d 649, 652-653; People v. Coleman (1950) 100 Cal.App.2d 797, 802).
It may be important in proving possession of a controlled substance to establish an unbroken chain of custody between the officer who seized a substance and the analyst who tested it. People v. Riser (1956) 47 Cal.2d 566, 580-581 (disapproved on other grounds by People v. Chapman (1959) 52 Cal.2d 95, 98, and People v. Morse (1964) 60 Cal.2d 631, 637-638, fn. 2, 648-649) stated: "Undoubtedly the party relying on an expert analysis of demonstrative evidence must show that it is in fact the evidence found at the scene of the crime, and that between receipt and analysis there has been no substitution or tampering [citation], but it has never been suggested by the cases, what the practicalities of proof could not tolerate, that this burden is an absolute one requiring the party to negative all possibility of tampering. [Citations.] [¶] The burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight." (Cf. People v. Catlin (2001) 26 Cal.4th 81, 134; People v. Wallace (2008) 44 Cal.4th 1032, 1061.) "The trial court's exercise of discretion in admitting the evidence is reviewed on appeal for abuse of discretion." (People v. Catlin, supra, 26 Cal.4th 81, 134.)
In a drug possession case, there are usually two groups who are questioned about the possibility of evidence-tampering: first, the law enforcement officers who collect the evidence, preserve it, transport it to a laboratory, retrieve it from the laboratory, and bring it to court (e.g., People v. Jimenez (2008) 165 Cal.App.4th 75, 80; People v. Wallace, supra, 44 Cal.4th 1032, 1062; People v. Williams (1989) 48 Cal.3d 1112, 1134); and, second, the laboratory employees who receive, analyze, and return the evidence to law enforcement officers (e.g., People v. Jimenez, supra, 165 Cal.App.4th 75, 80; People v. Catlin, supra, 26 Cal.4th 81, 134-135; People v. Lewis (1987) 191 Cal.App.3d 1288, 1298).
Whether someone might have tampered with the seized substance after it was chemically tested is rarely relevant. In People v. Lamb (1972) 24 Cal.App.3d 378 (Lamb), when heroin was introduced at trial, its packaging was such that tampering was a possibility. The appellate court noted that it was uncontradicted that the evidence seized "had reached the forensic chemist in an untampered condition. It was the chemist's testimony that was material; it is unnecessary to produce the actual narcotic at the trial, if the character of the evidence seized is otherwise proved." (Id. at p. 383; cf. People v. Rodgers (1976) 54 Cal.App.3d 508, 519; People v. Lovett (1978) 82 Cal.App.3d 527, 533.)
In this case, defendant stipulated that "[t]he bindle which was observed and recovered by Officer Holguin contains heroin, in an amount sufficient for use." This stipulation relieved the prosecution of presenting a laboratory analysis expert or any other witness to establish the nature of the substance in defendant's pocket (People v. Garcia (1970) 13 Cal.App.3d 486, 491; People v. Carnesi (1971) 16 Cal.App.3d 863, 871) and sufficed to establish that the substance was heroin. (People v. White (1960) 180 Cal.App.2d 99, 102-103.)
This stipulation also had the effect of eliminating any potential chain of custody issue. Even without the stipulation, the prosecution in this case was not required to produce the substance seized from defendant at trial. The prosecution would have been required, however, to establish the nature of the seized substance. If the prosecution were to rely on a laboratory analysis of the substance, it would have had to produce evidence of an unbroken chain of custody from defendant's pocket to the analyst. But defendant's stipulation that the substance recovered by Officer Holguin was heroin essentially eliminated the need to prove its nature by chemical testing. The chain of custody in this case consists of one link, defendant to Officer Holguin. So long as the court accepted Holguin's testimony that he found a black substance in defendant's pocket, defendant's stipulation established that the substance was heroin without the need of test evidence. As the stipulation implicitly relieved the prosecutor of calling a DOJ analyst, it also relieved the prosecutor of establishing a proper chain of custody to that analyst. Despite defense counsel's equivocations concerning the meaning of the stipulation, there was no issue at trial, and there is no issue on appeal, concerning possible evidence tampering or the chain of custody breaking after Officer Holguin placed the seized substance in an evidence envelope.
The Attorney General asserts that defendant "should be estopped from complaining about the chain of custody" due to his stipulation. Defendant "could not agree that the one person who could fully describe the chain of custody at the DOJ did not have to testify, and then complain that the technician's absence resulted in a lack of foundation for the heroin evidence." Defendant disputes existence of the elements of estoppel.
We need not evaluate the record to determine whether all the elements of judicial estoppel appear. Rather, defendant is simply bound by the stipulation offered by his counsel. (People v. Pijal (1973) 33 Cal.App.3d 682, 697.) Defendant's acknowledgment that the bindle recovered by Officer Holguin contained a usable amount of heroin narrowed the issues in dispute at trial. Having conceded the nature of the substance, defendant can no more complain on appeal of a failure of expert confirmation of his stipulation than he can complain of a deprivation of his rights to confront and cross-examine a lab analyst. (People v. Wright (1963) 221 Cal.App.2d 109, 113.) As the stipulation eliminated the need for expert testimony, it eliminated the need to establish that the substance made its way from Officer Holguin to an expert without contamination.
In light of this conclusion, we need not and do not consider the parties' other arguments about whether the existing evidence adequately established a chain of custody, either by itself or aided by the presumption that official duty has been regularly performed. (Evid. Code, § 664.)
4. THE PITCHESS MOTION
On appeal, defendant asks us to perform our obligations in reviewing the record, including the sealed reporter's transcript, of the trial court's denial of his Pitchess motion. Both sides cite precedent on how to perform this review.
In Garcia v. Superior Court (2007) 42 Cal.4th 63, 69-70, the California Supreme Court explained: "In Pitchess, supra, 11 Cal.3d 531, 'we recognized that a criminal defendant may, in some circumstances, compel the discovery of evidence in [a] law enforcement officer's personnel file that is relevant to the defendant's ability to defend against a criminal charge. "In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as 'Pitchess motions' . . . through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045." (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81 (Santa Cruz) . . . .) By providing that the trial court should conduct an in camera review, the Legislature balanced the accused's need for disclosure of relevant information with the law enforcement officer's legitimate expectation of privacy in his or her personnel records.' (People v. Mooc (2001) 26 Cal.4th 1216, 1219-1220 (Mooc).)" (Fns. omitted.)
Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019, further explained: "The trial court may not disclose complaints more than five years old, the 'conclusions of any officer' who investigates a citizen complaint of police misconduct, or facts 'so remote as to make [their] disclosure of little or no practical benefit.' (§ 1045, subd. (b); [citation].) Typically, the trial court discloses only the names, addresses, and telephone numbers of individuals who have witnessed, or have previously filed complaints about, similar misconduct by the officer."
Mooc explained in detail how an in camera hearing should be conducted. "When a trial court concludes a defendant's Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer's personnel files, the custodian of the records is obligated to bring to the trial court all 'potentially relevant' documents to permit the trial court to examine them for itself. (Santa Cruz, supra, 49 Cal.3d at p. 84.) A law enforcement officer's personnel record will commonly contain many documents that would, in the normal case, be irrelevant to a Pitchess motion, including those describing marital status and identifying family members, employment applications, letters of recommendation, promotion records, and health records. (See Pen. Code, § 832.8.) Documents clearly irrelevant to a defendant's Pitchess request need not be presented to the trial court for in camera review. But if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the locus of decisionmaking is to be the trial court, not the prosecution or the custodian of records. The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant's Pitchess motion. A court reporter should be present to document the custodian's statements, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record. [Citation.] [¶] The trial court should then make a record of what documents it examined before ruling on the Pitchess motion. Such a record will permit future appellate review." (Mooc, supra, 26 Cal.4th at pp. 1228-1229.)
Mooc rejected a suggestion that "the custodian of records must always produce the entire personnel file in response to a Pitchess motion," noting that the custodian's obligation is to produce only those documents from the file "that were potentially responsive to [the] defendant's specific request." (Mooc, supra, 26 Cal.4th at p. 1230.) Mooc contemplates the possibility that there may be no potentially relevant document in an officer's personnel file, either due to the limited nature of the defendant's requests or because no complaint has been lodged against the officer.
At the in camera hearing in this case, two employees from the Correctional Training Facility described the records they reviewed in advance of the hearing. The official personnel file contained five sections, including a section on performance evaluations and a separate miscellaneous section. There were five other records where adverse complaints would likely be found: the supervisor's files, the employer relations officer's records, inmate appeals, investigative services records, and Equal Employment Opportunity Commission records. Both employees stated under oath in response to the court's questioning that they found no adverse complaints in any of these records pertaining to Officers Holguin, Bann, and Archuleta. The court implicitly found the custodians of the records credible.
After reviewing this transcript we are satisfied that, unlike the custodians of the records in People v. Guevara (2007) 148 Cal.App.4th 62, 69 and People v. Wycoff (2008) 164 Cal.App.4th 410, 415, the custodians in this case fulfilled their obligations under Mooc to fully describe the contents of the personnel records and to explain why their contents were deemed irrelevant or unresponsive. We find neither abuse of discretion nor error in how the trial court conducted the in camera hearing or the conclusion it reached.
5. DISPOSITION
The judgment is affirmed.
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WALSH, J.
WE CONCUR: ________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
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MIHARA, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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