Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD203136 Bernard E. Revak, Judge.
McDONALD, J.
A jury convicted defendant Gary Bland of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)), and possessing cocaine base (Health & Saf. Code, § 11350, subd. (a)). In a bifurcated proceeding, the court found true five prison prior allegations (Pen. Code, § 667.5, subd. (b)) and Bland admitted he had suffered a prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a). The court sentenced Bland to a total term of nine years in prison, and imposed a restitution fine of $3600. On appeal, Bland asserts (1) the trial court was obligated sua sponte to instruct the jury that a copurchaser of drugs cannot be guilty of their sale, (2) the trial court erroneously denied his Pitchess motion, and (3) the amount of the restitution fine was selected under the erroneous belief the amount was mandatory.
All further statutory references are to the Penal Code unless otherwise specified.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTUAL BACKGROUND
On the evening of November 29, 2006, Officer Esmeralda Tagaban was working undercover as part of a narcotics sting when she encountered Bland. Bland greeted her, she responded, "What's up," and he replied, "Give me something that I can work with." Tagaban displayed two premarked $10 bills, and Bland then asked what she wanted. She replied "a twenty," meaning $20 worth of cocaine base, and Bland responded, "Come with me, I'll take care of you."
They walked toward another street and Bland gestured for her to give him the money, which she did. They encountered a man who said, "You guys are the guys that I want to see," but Bland told him to stand by. Bland then led Tagaban to the end of the block where he looked around, and then told Tagaban, "He's not here." Bland and Tagaban began walking back, where they reencountered the man, who told Bland he only had "seven." Bland replied that the man was a little short and needed to find another three.
After 10 or 15 minutes, Tagaban ran out of patience and asked Bland to return her money. Bland returned her money but stated she should not leave without "getting what [she] came to get." At that point, a woman (later identified as Cecilia Albuthi) approached. Bland asked Albuthi if she had a "thirty." Albuthi said yes and displayed a bindle containing a rock-like substance (weighing .18 grams) and some loose fragments (known as "kibble") consisting of approximately .09 grams, which was later determined to be rock cocaine. Bland told Albuthi the rock was not worth $20 but Albuthi replied that was all she had and it was twenty dollars. Bland then took the rock and kibble from Albuthi, showed it to Tagaban, and asked Tagaban if she still wanted it. Tagaban said she wanted it, and gave the $20 to Bland and took the rock but left the kibble with Bland. Bland then gave the money to Albuthi, and then asked Tagaban if he could keep the kibble for himself. Tagaban nodded affirmatively. Tagaban then signaled to fellow officers, who arrested Bland and Albuthi. When arrested, Albuthi had $350 on her person and Bland had $16 in his possession.
ANALYSIS
A. The Instructional Issue
Bland argues the court was obligated sua sponte to instruct that, under People v. Edwards (1985) 39 Cal.3d 107 (Edwards), a copurchaser of drugs is not guilty of violating Health and Safety Code § 11352, subdivision (a), for furnishing or selling the drugs to his copurchaser. He asserts that because there was substantial evidence from which a jury could have concluded that he and Tagaban were copurchasers of the drugs within the meaning of Edwards, the instructional omission was prejudicial error requiring reversal of his conviction for sale of drugs.
We conclude there was no substantial evidence that this case was one of the "few cases involving a copurchase by truly equal partners." (Edwards, supra, 39 Cal.3d at p. 114, fn. 5.) In Edwards, the court examined the ruling in People v Mayfield (1964) 225 Cal.App.2d 263. Mayfield concluded that when several individuals mutually agree to pool their funds to acquire drugs and divide the drugs among themselves for their personal consumption, and thereafter carry out their enterprise, none of the individuals can fairly be said to have sold or furnished drugs to their copartners within the meaning of the statutory proscription. (Mayfield, at p. 267.) Edwards concluded "[t]he distinction drawn by the Mayfield court between one who sells or furnishes heroin and one who simply participates in a group purchase seems to us a valid one, at least where the individuals involved are truly 'equal partners' in the purchase and the purchase is made strictly for each individual's personal use. Under such circumstances, it cannot reasonably be said that each individual has 'supplied' heroin to the others." (Edwards, at pp. 113-114, fn. omitted.) Edwards cautioned, however, that it would be the rare case to which this rule applied, because "[w]here one of the copurchasers takes a more active role in instigating, financing, arranging or carrying-out the drug transaction, the 'partnership' is not an equal one and the more active 'partner' may be guilty of furnishing to the less active one. Furthermore, one who acts as a go-between or agent of either the buyer or seller clearly may be found guilty of furnishing as an aider and abettor to the seller." (Id. at p. 114, fn. 5.) Edwards then examined whether there was substantial evidence from which the jury could have reasonably concluded the defendant and his partner were equal partners in both the financing and execution of the drug purchase. Edwards concluded there was evidence from which a jury could have found (1) they had agreed to pool their financial resources to obtain their objective of obtaining a quantity of drugs that they would thereafter divide for their personal consumption, and (2) they were equally active in the executing the purchase and there was no evidence either person "acted as a go-between or agent of the other." (Id. at p. 115.)
In the instant case there is no substantial evidence to support a finding of any of the elements required to fit within the Edwards exception. Most importantly, there is no evidence Bland and Tagaban mutually agreed to pool their finances to obtain drugs they would later divide for their personal consumption. They apparently had never met before, did not discuss and agree to pool their resources, and did not discuss and agree in advance that the drugs so acquired would be divided between them. Moreover, they were not equal participants in executing the purchase. Tagaban passively waited while Bland, acting as a classic "go-between," collected Tagaban's cash, contacted the seller, obtained the drugs, and then (before confirming the sale) asked Tagaban whether she approved the purchase. Only after Tagaban approved the purchase did Bland pay the seller, using only Tagaban's funds. Indeed, Bland initially held out the entire cache for Tagaban to take, and it was only after the transaction was completed that he asked (and she agreed) that he be allowed to keep the kibble.
Because there is no evidence of a mutual agreement to pool funds (or an actual pooling of funds), or a mutual agreement they would divide the acquired drugs, or acted as equal partners in executing the purchase, there was no sua sponte obligation to instruct under Edwards.
B. The Pitchess Issue
When a defendant claims a peace officer has engaged in misconduct that provides a defense to the charges against the defendant, the defendant may file a Pitchess discovery motion seeking information from the officer's personnel file regarding prior similar complaints of misconduct against the officer. (See Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021.) A trial court has wide discretion when ruling on a Pitchess discovery motion. (People v. Memro (1995) 11 Cal.4th 786, 832.)
To obtain in camera review of an officer's personnel records for information relevant to claimed officer misconduct, the defendant must make a " 'relatively low threshold' " showing of good cause for the discovery. (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1016, 1019.) To make this good cause showing, the defendant must demonstrate the materiality of the requested information to the pending litigation by filing an affidavit identifying a defense to the pending charges and articulating how the requested information is potentially relevant to the proposed defense. (Id. at pp. 1019, 1021, 1024, 1027; Evid. Code, § 1043, subd. (b)(3).). If the trial court finds good cause for the discovery, it reviews the personnel documents in chambers and discloses only information within statutorily defined standards of relevance. (Warrick, at p. 1019.)
Here, Bland claimed Tagaban had falsified her police report (1) by stating she had taken the rock from Bland when in fact she had taken it directly from Albuthi, and (2) by stating she had given the two marked $10 bills to Bland when in fact she handed them directly to Albuthi. The Pitchess motion sought information that would have buttressed Bland's claim that Tagaban's testimony lacked credibility as to the precise nature of the events during their interaction.
The trial court conducted a hearing on the motion, apparently concluded Bland had met the "relatively low threshold" of demonstrating good cause, and subsequently conducted a detailed in camera review of Tagaban's personnel records. (See Warrick v. Superior Court, supra, 35 Cal.4th at p. 1019 ["If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance."].) After reviewing the personnel records in camera, the court ruled there was no information in the records that was discoverable. On appeal, this court is required to examine the materials in camera and determine whether the trial court abused its discretion by refusing to disclose the contents of the officer's personnel files. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Mooc (2001) 26 Cal.4th 1216, 1229.) We have examined the personnel records in camera and conclude the trial court did not abuse its discretion in concluding there was nothing in Tagaban's records relevant to the proposed defense articulated by Bland's Pitchess motion.
C. The Sentencing Issue
Bland argues the trial court imposed a restitution fine of $3600 under section 1202.4, as well as a parole revocation fine under section 1202.45, under the mistaken belief that amount was required by statute. Because this error skewed the fine imposed by the court, Bland argues the fine should be reduced or alternatively be reversed and remanded for the court to reassess the fine under the correct formulations.
At Bland's sentencing hearing, the court noted that Bland was a repeat offender, this offense would involve his sixth prison commitment, and he had only been out of prison for 13 days before he committed the present offenses. Although the court exercised some leniency, it imposed a term of nine years in prison, and "[p]ursuant to [sections] 1202.4[, subdivision] (b) and 1202.45, [Bland] is ordered to pay a mandatory restitution fine of $3600," although the 1202.45 fine was stayed until parole is revoked. Bland did not object to the amount of the fine.
Statutory Provision
Section 1202.4, subdivision (b) provides that, in every case in which the defendant is convicted of a crime, "the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." It further provides that the amount of the restitution fine "shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony . . . ." (Id. at subd. (b)(1).) When setting the fine, "the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (Id. at subd. (b)(2), italics added.)
The Claim of Error is Waived
A criminal defendant, by failing to object at the trial level, forfeits his or her appellate claims "involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (People v. Scott (1994) 9 Cal.4th 331, 353.) However, there is a limited exception to this forfeiture principle. A defendant who does not object at the trial level is not precluded from challenging an unauthorized sentence, which is a sentence that "could not lawfully be imposed under any circumstance in the particular case." (Id. at p. 354.)
The Supreme Court recently clarified the forfeiture doctrine and the rationales for exceptions to the general rule that the failure to object at trial to an erroneous ruling forfeits that party's right to raise the claim on appeal. (See In re Sheena K. (2007) 40 Cal.4th 875.) In the context of reviewing sentencing matters, the "so-called 'unauthorized sentence' [exception to the forfeiture doctrine applies where the sentence] cannot 'lawfully be imposed under any circumstance in the particular case' [citing Scott, supra, 9 Cal.4th at p. 354] . . . . An obvious legal error at sentencing that is 'correctable without referring to factual findings in the record or remanding for further findings' is not subject to forfeiture. [Citations.]" (In re Sheena K. at p. 887, quoting People v. Smith (2001) 24 Cal.4th 849, 852.) Although the exception to the forfeiture doctrine has been applied in the context of challenges to restitution fines, the challenge has been deemed preserved only where it involved a purely legal challenge to the imposition of a restitution fine. For example, in People v. Chambers (1998) 65 Cal.App.4th 819, the court held that a defendant's challenge to the imposition of a second restitution fine following the trial court's revocation of probation was not forfeited because the trial court acted in excess of its authority by imposing the second fine. (See also People v. Kunitz (2004) 122 Cal.App.4th 652, 657 challenge to imposition of joint and several restitution and parole revocation fines on two defendants preserved because statutes did not expressly provide for imposition of fines payable jointly and severally among two or more defendants and was therefore an unauthorized sentence; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534 imposition of restitution of more than $10,000 was an amount that could not lawfully be imposed and therefore challenge not waived by failure to object.)
Here, the amount of the fine imposed was within the range of a permissible restitution fine. Accordingly, the court's failure to articulate its reasons for the selected fine may not be challenged on appeal.
Bland asserts that we may reach the issue because counsel was ineffective by not objecting to the fine. However, a claim of ineffective assistance of counsel requires a showing that (1) the attorney's failure to object fell below the objective standard of reasonable competence, and (2) it is reasonably probable that the result of the proceeding would have been different. (People v. Le (2006) 136 Cal.App.4th 925, 935.) The failure of Bland's attorney to interpose a futile objection, considering the fine was legally authorized and was only approximately one-third of the maximum permitted by law, does not appear to fall below the objective standard of reasonable competence. Moreover, we are unconvinced it is reasonably probable the result of the proceeding would have been different: the court had shown some leniency (by striking three of the terms for Bland's five prison prior allegations) while simultaneously imposing a significant sentence considering its observations that "he just got out of prison 13 days before this, and he's right back at it." Because the court imposed more than 50 percent of the authorized prison term, it is not reasonably likely the court would have reduced the amount of restitution below the 36 percent of authorized restitution that it selected.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.