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People v. Clark

California Court of Appeals, Second District, First Division
Apr 19, 2011
No. B222030 (Cal. Ct. App. Apr. 19, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA341302 Charlaine F. Olmedo, Judge.

Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


ROTHSCHILD, J.

Antwan Clark appeals from the judgment entered after the trial court sentenced him to three years in state prison for a conviction under Health and Safety Code section 11352, subdivision (a), based on a finding that he violated his probation.

We appointed counsel to represent Clark in the matter. After examining the record, counsel filed a Wende brief raising no issues on appeal and requesting that we independently review the record, including the disposition of Clark’s motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 in another case whose facts formed the basis for the probation violation finding. (People v. Wende (1979) 25 Cal.3d 436.) On November 1, 2010, we directed appointed counsel to immediately send the record on this appeal and a copy of the opening brief to Clark and notified Clark that within 30 days from the date of the notice he could submit by brief or by letter any grounds of appeal, contentions or argument he wished us to consider. After an augmented clerk’s transcript was filed in the appeal, on February 3, 2011, we sent Clark a copy of the transcript and gave him an additional 30 days to file a brief or letter. We received no response from Clark.

We briefly describe the facts and procedural history of the case, the crime of which Clark was convicted, and the punishment imposed. (People v. Kelly (2006) 40 Cal.4th 106, 110.)

FACTUAL AND PROCEDURAL BACKGROUND

An information dated August 7, 2008, case no. BA341302, charged Clark with the sale of cocaine base in violation of Health and Safety Code section 11352, subdivision (a). The information specially alleged that Clark previously had been convicted of possession of a controlled substance in violation of Health and Safety Code section 11351 and obstructing or resisting an executive officer in violation of Penal Code section 69.

On September 9, 2008, Clark pleaded guilty to violation of Health and Safety Code section 11352, subdivision (a). The trial court (Hon. Michael A. Tynan) suspended imposition of Clark’s sentence and placed him on formal probation for five years. One of the conditions of probation was that Clark “obey all laws.” The court dismissed the special allegations.

On January 20, 2009, after Clark was arrested and new charges were filed against him under Health and Safety Code section 11350, subdivision (a), in case no. BA351102, the trial court (Hon. Monica Bachner) made a preliminary finding that Clark had violated his probation and ordered probation revoked. On May 27, 2009, Clark pleaded guilty to the charges in case no. BA351102 and was placed on three years formal probation. Probation in case no. BA341302 was reinstated.

Clark again was arrested and new charges were filed against him in case no. BA358477 on June 30, 2009. His probation in case no. BA341302 was revoked and then reinstated. Another arrest occurred on July 28, 2009, resulting in new charges against Clark in case no. BA359607. Clark’s probation on case no. BA341302 was revoked, and he was remanded to custody.

On September 21, 2009, the trial court (Hon. Charlaine F. Olmedo) suspended proceedings against Clark in case no. BA359607 so that a mental competency hearing could be performed pursuant to Penal Code section 1368. Also on September 21, 2009, Clark filed a motion pursuant to Pitchess, supra, 11 Cal.3d 531, in case no. BA359607 seeking information from the personnel files of Los Angeles Police Department Officers Sean Mulford and D. Machado, the officers involved in the incident leading to the charge in that case.On October 28, 2009, after Clark was found competent to stand trial, the court resumed the proceedings against him in case no. BA359607. It also conducted an in camera review of the personnel files of Officers Mulford and Machado, ordering disclosure of three complaints from Officer Machado’s file. On December 7, 2009, the court granted the People’s motion to dismiss case no. BA359607 without prejudice and set a probation violation hearing in case nos. BA341302, BA351102 and BA358477.

At that hearing, on January 8, 2010, the People presented evidence that, on July 28, 2009, about 2:35 p.m., Officer Mulford observed Clark at the corner of San Pedro Street and 7th Street showing something in his left hand to another man, who then handed an unknown amount of currency to Clark and took the object from Clark’s hand. As Officer Mulford approached, the man took out what appeared to be a rock cocaine pipe and loaded a rock into the pipe, and Clark began to jog away. Officer Mulford detained the man, arrested him for narcotics possession and recovered cocaine base from him. Officer Machado found and detained Clark, recovering two $1 bills from him, which appeared to be the money handed to him by the man. Clark was arrested for the sale of cocaine base. Clark testified in his defense, stating that he was on his way to see his probation officer when he was detained by Officer Machado, “victimized by police brutality” and injured. When questioned about the man to whom he allegedly sold cocaine, Clark responded, “I don’t know anybody. I don’t know him.” After hearing the testimony and reviewing the exhibits, the court found Clark in violation of his probation, noting that the file in case no. BA341302 indicated that Clark had never reported for probation and thus that Clark’s testimony that he was going to see his probation officer at the time of the incident was disingenuous. The court terminated probation in case nos. BA341302, BA351102 and BA358477 and sentenced Clark to state prison, imposing the low term of three years, for the violation of Health and Safety Code section 11352, subdivision (a), in case no. BA341302. Clark appealed.

DISCUSSION

In her Wende brief, Clark’s appointed counsel requested that, in connection with our independent review of the case, we read the sealed record of the in camera hearing before the trial court on Clark’s motion in case no. BA359607 pursuant to Pitchess, supra, 11 Cal.3d 531, because the probation violation found by the court was based in part on the testimony of Officer Mulford regarding the July 28, 2009 drug sale by Clark and his apprehension.

“For approximately a quarter-century our trial courts have entertained what have become known as Pitchess motions, screening law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant’s defense.” (People v. Mooc (2001) 26 Cal.4th 1216, 1225, fn. omitted (Mooc); see Pitchess, supra, 11 Cal.3d 531.) To balance the defendant’s right to discovery of records pertinent to his or her defense, and thus to a fair trial, with the peace officer’s reasonable expectation that his or her personnel records remain confidential, the Legislature adopted a statutory scheme requiring a defendant to meet certain prerequisites before a trial court considers his or her request. (People v. Prince (2007) 40 Cal.4th 1179, 1284-1285; Mooc, supra, 26 Cal.4th at p. 1227;see §§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043-1047 [statutory scheme governing Pitchess motions].)

A defendant seeking to initiate discovery must file a written motion that includes “[a] description of the type of records or information sought, ” supported by “[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency indentified has the records or information from the records.” (Evid. Code, § 1043, subd. (b)(2) & (3); California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019-1020.)

“Good cause for discovery exists when the defendant shows both ‘“materiality” to the subject matter of the pending litigation and a “reasonable belief” that the agency has the type of information sought.’ [Citation.] A showing of good cause is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents.’” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 (Warrick).) The defendant need only present a factual scenario of officer misconduct “that might or could have occurred.” (Id. at p. 1026.)That is because “a credibility or persuasiveness standard at the Pitchess discovery stage would be inconsistent with the statutory language....” (Ibid.) The defendant, however, must request information with sufficient specificity to preclude the possibility that he or she is “simply casting about for any helpful information.” (Mooc, supra, 26 Cal.4th at p. 1226.)

If the trial court concludes the defendant has satisfied the prerequisites and made a good cause showing for discovery, the custodian of records must bring to court all documents “‘potentially relevant’” to the defendant’s request. (Mooc, supra, 26 Cal.4th at p. 1226.) The trial court then examines the documents in chambers with only the custodian of records and such other persons he or she is willing to have present. (Evid. Code, §§ 915, subd. (b), 1045, subd. (b).) “Subject to certain statutory exceptions and limitations, ” the trial court must disclose to the defendant “‘such information [that] is relevant to the subject matter involved in the pending litigation.’” (Mooc, supra, 26 Cal.4th at p. 1226; see also Warrick, supra, 35 Cal.4th at p. 1019.) “A trial court’s ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion.” (People v. Hughes (2002) 27 Cal.4th 287, 330.)

The trial court must exclude from disclosure: “(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought. [¶] (2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code. [¶] (3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.” (Evid. Code, § 1045, subd. (b); see also Mooc, supra, 26 Cal.4th at pp. 1226-1227.)

In his pretrial motion for Pitchess discovery, Clark’s counsel asserted that Clark was requesting personnel records of Officers Mulford and Machado because their report of the alleged drug transaction involving Clark was falsified and Officer Machado “beat” Clark when detaining him and the materials requested would be used by the defense to locate witnesses. The trial court found good cause for it to review in camera the personnel file of the officers as to Clark’s claims of dishonesty and false reporting. At the in camera hearing, the trial court reviewed and described the personnel files of Officers Mulford and Machado. (See Mooc, supra, 26 Cal.4th at p. 1229.) The court determined that there was no discoverable Pitchess material in Officer Mulford’s file. It concluded that three complaints from Officer Machado’s files related to truth or veracity, and thus were discoverable under Pitchess, and ordered their disclosure. As Clark requested, we reviewed the sealed transcript of the in camera hearing before the court. Based on that review, we conclude the court properly exercised its discretion in determining that the personnel file of Officers Mulford contained no material appropriate for disclosure under Pitchess and in ordering disclosure of three complaints regarding truth or veracity from Officer Machado’s file.

The court found good cause did not exist to review the officers’ personnel files for complaints of excessive force, as they were not material to the charge against him. This determination was in the court’s discretion, because the charge against Clark related to his sale of cocaine base, not to anything regarding resisting arrest or use of force, and thus the information was not material. (Warrick, supra, 35 Cal.4th at p. 1021 [showing of good cause must be linked to pending charge against defendant]; see City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86 [complaints regarding excessive use of force relevant in case where defendant charged with resisting arrest].)

In addition to reviewing the Pitchess proceedings, we have examined the entire record and are satisfied that Clark’s appointed attorney has fully complied with her responsibilities and that no arguable issue exists. (People v. Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

The judgment is affirmed.

We concur: MALLANO, P. J., CHANEY, J.


Summaries of

People v. Clark

California Court of Appeals, Second District, First Division
Apr 19, 2011
No. B222030 (Cal. Ct. App. Apr. 19, 2011)
Case details for

People v. Clark

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTWAN CLARK, Defendant and…

Court:California Court of Appeals, Second District, First Division

Date published: Apr 19, 2011

Citations

No. B222030 (Cal. Ct. App. Apr. 19, 2011)