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In re Chase C.

California Court of Appeals, Second District, Sixth Division
Jul 10, 2008
2d Juv. B201762 (Cal. Ct. App. Jul. 10, 2008)

Opinion

NOT TO BE PUBLISHED

Superior Court County of Ventura No. 2007019030. Manuel J. Covarrubias, Judge, Roland N. Purnell, Judge.

Susan B. Gans-Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.


GILBERT, P.J.

Here, after a contested hearing, the juvenile court sustained a petition alleging petty theft, battery on a peace officer (Pen. Code, §§ 484, subd. (a), 243, subd. (a)) and possession of 28.5 grams of marijuana or less (Health & Saf. Code, § 11357, subd. (b)), all misdemeanors. We conclude the juvenile court erred in denying the minor's Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) We remand with instructions to the juvenile court to conduct an in camera review of the arresting officer's personnel records. If the court finds material in the records that require disclosure, it shall grant a new trial. If it does not find such material, it shall reinstate the judgment.

FACTS

An employee of Vons grocery store saw Chase C. (Chase) leave the store with a "Lunchables" meal, without paying. Ventura County Sheriff's Deputy William Hutton responded to the call from the store. When Hutton arrived at the store, he saw Chase, who matched the suspect's description, sitting in the store's parking lot. Chase was eating a square piece of pizza. Chase admitted to Hutton that he took two boxes of pizza from the store.

Hutton, who is a drug recognition expert, noticed that Chase appeared to be under the influence of a stimulant and marijuana. Chase admitted to Hutton that he had smoked marijuana. Hutton discovered Chase was on probation and conducted a search. He found 0.5 grams of a leafy substance in Chase's pants pocket. Hutton did not open the baggie, but said he could smell the marijuana through the bag.

Hutton brought Chase to the police station. Chase was initially cooperative in the interview room, and Hutton removed his handcuffs. As Hutton was leaving the room, Chase spat toward him. Hutton felt a "mist" on his left arm. Hutton told Chase he was not going to spit again. Chase cleared his throat in a manner indicating he was going to spit. Hutton placed his hand over Chase's mouth to protect himself from being spit on. As Hutton pushed Chase back to handcuff him, Chase stood and made a fist. Hutton believed Chase was attempting to hit him. Hutton hit Chase on his right ear and Chase fell to the ground. Hutton put his knee in Chase's back to try to control him. Chase continued to resist by flailing about on the ground and trying to make fists. Eventually, Hutton handcuffed Chase with the help of another deputy.

Hutton told Chase to sit on the floor. He sat on the floor, but stood back up and began walking toward Hutton. He appeared to be trying to leave the interview room. Hutton pushed him back into the room and sat him on the floor.

DISCUSSION

I

Chase contends the court erred in denying his motion to discover Hutton's personnel records pursuant to Pitchess.

Chase's counsel declared that Hutton's personnel records are relevant to, among other matters, impeach Hutton's testimony and to corroborate defense testimony that Chase only used force in self-defense.

Chase's counsel further declared, on information and belief: that Chase did not act combative, clench his right fist, begin to raise his right hand, resist or continue to be combative; that Chase tried to push Hutton's hand away when he squeezed Chase's jaw, whereupon Hutton punched Chase in the mouth causing him to fall face first to the ground; that Hutton punched Chase in the head when he attempted to get up off the ground; that Hutton kneed Chase in the stomach and hit him with his foot; and that Hutton threw Chase to the ground. He attempted to flee the room after being beaten by Hutton.

Among other information, Chase requested the names, addresses and telephone numbers of percipient witnesses to prior acts of harassment and violence by Hutton.

The sheriff's department opposed the motion on the grounds that Chase has made no showing how the requested information could be material; and his request is overbroad in that he is only entitled to the name, address and telephone number of complaining witnesses.

The trial court denied the Pitchess motion without examining Hutton's records. The court said the facts alleged by Chase "correspond almost exactly with what [Hutton] has stated took place when he recorded that in his report . . . ." The court also agreed with the county that the motion was overbroad in the information it sough to discover.

A motion for the discovery of a peace officer's personnel records is addressed to the sound discretion of the trial court. (Pitchess, supra, 11 Cal.3d at p. 535.) The motion must be supported by an affidavit that shows good cause for the disclosure by setting forth the materiality of the information sought to the subject matter of the pending litigation. (Evid. Code, § 1043, subd. (b)(3).) The affidavit need not be based on personal information, but may be made by the defendant's counsel on information and belief. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 86-89.) On a finding of good cause, the court must examine the information in chambers and exclude from disclosure several categories of information including: complaints more than five years old, the conclusions of an officer investigating a complaint and facts which are so remote as to make disclosure of little or no practical benefit. (Evid. Code, § 1045, subd. (b); City of Santa Cruz, supra, at p. 83.)

The juvenile court was wrong when it concluded that the facts alleged by Chase correspond almost exactly with what Hutton stated. Hutton's version of the events is that he used only the amount of force necessary to keep Chase from spitting on him and otherwise assaulting him and to overcome Chase's resistance to arrest. Chase's version of the events is that he was not combative, but he reacted in self-defense to Hutton's excessive use of force.

Hutton's personnel records might disclose other complaints of excessive use of force that could be material to Chase's claim of self-defense. Chase's attorney's affidavit was sufficient to show good cause. The trial court erred in failing to make an in camera review of the records and to disclose the appropriate information, if any.

The Attorney General argues that Chase's request for information is overbroad. Assuming that to be true, the juvenile court can sort out on remand the proper scope of discovery. Chase is at least entitled to the name, address and telephone number of prior complainants and witnesses and the dates of the incidents, if any. (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 84.)

The Attorney General argues that even if the juvenile court erred, Chase has not shown prejudice. But the trial court's decision not to view Hutton's records precludes Chase from showing prejudice on appeal. Such an error may be deemed harmless where there is extensive evidence of guilt other than the officer's testimony. (See People v. Samuels (2005) 36 Cal.4th 96, 110.) But here the Attorney General points to no evidence concerning the charge of resisting a peace officer other than Hutton's testimony. Under the circumstances, the traditional harmless error analysis does not apply. (See People v. Hustead (1999) 74 Cal.App.4th 410, 419.) Instead, we adopt the disposition in Hustead: "'[W]e will remand the case to the trial court to conduct an in camera hearing on the discovery motion. If there is no discoverable information in the file, then the trial court is ordered to reinstate the original judgment and sentence, and the judgment is ordered affirmed. [Citation.] If, however, there is relevant discoverable information in the officer's file, . . . appellant should be given an opportunity to determine if the information would have led to any relevant, admissible evidence that he could have presented at trial. [Citation.] If appellant is able to demonstrate that he was prejudiced by the denial of the discovery, the trial court should order a new trial. If appellant is unable to show any prejudice, then the conviction is ordered reinstated, and the judgment is ordered affirmed.'" (Accord, People v. Johnson (2004) 118 Cal.App.4th 292, 305.).

II

Chase contends there is no substantial evidence to support the allegation of possession of marijuana.

In reviewing the sufficiency of the evidence we view the evidence in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the evidence or judge the credibility of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if we determine that any rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Johnson, supra, at p. 578.)

Chase argues there is insufficient evidence that the substance found in his pocket was marijuana. He points out that the substance was not tested. But Hutton is an expert in drug recognition; he testified the substance smelled like marijuana; that Chase appeared to be under the influence of marijuana; and that Chase admitted to him that he had smoked marijuana. That is sufficient for the court to conclude the leafy substance Hutton found in Chase's pocket was marijuana.

Chase also argues there is no evidence he possessed a useable amount. But our Supreme Court stated in People v. Rubalcaba (1993) 6 Cal.4th 62, 66, "[the] . . . usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace." Here Hutton testified the marijuana found on Chase weighed 0.5 grams and that Chase appeared to be under the influence of marijuana. Half a gram is more than a blackened residue or a useless trace. In addition, it is a reasonable inference that Chase was under the influence from using marijuana from the baggie found in his possession. Thus there is sufficient evidence that Chase possessed a useable quantity of marijuana.

III

Chase contends there is no substantial evidence to sustain the allegation of battery on a peace officer.

Chase points out the only evidence of a battery is Hutton's testimony that Chase spat at him from a few feet away and that Hutton felt a "mist" on his arm. Chase argues that a mist is insufficient to support a charge of battery.

But any harmful or offensive touching constitutes a battery. (People v. Martinez (1970) 3 Cal.App.3d 886, 889.) The touching element is satisfied if a person causes an object to touch the victim. (People v. Pinholster (1992) 1 Cal.4th 865, 961 [throwing urine in the victim's face].)

Here, although Hutton felt only a mist, the mist was a bodily fluid. Most people find even a mist of another person's bodily fluid to be an offensive touching. There is sufficient evidence to sustain the allegation of battery on a peace officer.

We reverse and remand for the juvenile court to conduct an in camera review of Hutton's personnel records. If the court finds any matter that should have been disclosed, the court shall disclose the matter and grant the minor a new trial if he can show prejudice. Otherwise, the court shall reinstate the judgment.

We concur: YEGAN, J., PERREN, J.


Summaries of

In re Chase C.

California Court of Appeals, Second District, Sixth Division
Jul 10, 2008
2d Juv. B201762 (Cal. Ct. App. Jul. 10, 2008)
Case details for

In re Chase C.

Case Details

Full title:In re CHASE C., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

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

Date published: Jul 10, 2008

Citations

2d Juv. B201762 (Cal. Ct. App. Jul. 10, 2008)