Opinion
B225317
08-04-2011
THE PEOPLE, Plaintiff and Respondent, v. OSCAR AVILA, Defendant and Appellant.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA083427)
APPEAL from a judgment of the Superior Court of Los Angeles County, Joan Comparet-Cassani, Judge. Affirmed in part, reversed in part and remanded.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Oscar Avila of carrying an unregistered and loaded firearm in violation of Penal Code section 12031, subdivision (a)(1), and being a felon in possession of a firearm in violation of section 12021, subdivision (a)(1).The trial court imposed a two-year sentence for the loaded firearm offense and a consecutive term of eight months on the felon in possession of a firearm charge (one-third the middle term).
All further statutory references are to the Penal Code, unless stated otherwise.
The information was amended to add an allegation of a prior felony conviction under section 667.5, subdivision (b), but it was stricken on the People's motion
In his timely appeal, defendant first contends the trial court erroneously denied his motion for discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) without conducting an in camera hearing and, second, the court erroneously refused to stay his felon in possession sentence in violation of section 654.
We conclude the trial court erred in failing to order an in camera hearing under Pitchess and therefore conditionally reverse and remand to the trial court. We also agree that the court impermissibly imposed double punishment under section 654. Therefore, subject to the outcome of the in camera hearing, we order the sentence on count 2 stayed, with the stay to become permanent upon completion of the sentence in count 1. In all other respects, the judgment is affirmed.
STATEMENT OF FACTS
On August 23, 2009, at 3:54 a.m., Officer Martin Ron and his partner Officer Kalib Abuhadwan drove to a residence on Main Street in Long Beach in response to reports of a person "possibly seen with a firearm." Officer Sok was already at the address when they arrived. The uniformed officers walked up the driveway to the rear apartment unit. They heard people talking and smelled a strong odor of marijuana. As the officers approached, a crowd of approximately 15 people were gathered in front of the apartment unit. Officer Ron saw partygoers with alcoholic drinks and beer bottles. He loudly announced they were police officers and they had responded to reports of a person with a firearm.
After Officer Ron asked who had the firearm, defendant said, "I have the gun." Defendant was among the partygoers standing outside the apartment, to the officer's left, 10 to 15 feet away from the residence's front door. Officer Abuhadwan told defendant to kneel down, handcuffed him, and removed a small silver nine-millimeter Derringer pistol with two barrels from defendant's front pant pocket. Within minutes, Officer Ron radioed the weapon's serial number to the dispatcher and was informed it had been stolen.
The California Department of Justice's official database lists stolen weapons by serial number and description. The serial number on the Derringer taken from defendant matched the database description of an identical weapon that was purchased in 1992 by a person other than defendant and reported stolen prior to the date of the underlying incident.
In the meantime, defendant had been arrested and placed in the back of the patrol car. Officer Ron advised defendant of his Miranda rights, including his right to remain silent and his right to legal counsel. Defendant waived his rights and agreed to talk to Officer Ron. In response to the officer's question, defendant said his "homey" gave him the Derringer "a little while ago." Defendant would not identify the person who gave him the gun, explaining that "you know how it is out there." Defendant stated he had received the pistol 15 minutes before the officers arrived and placed it in his right front pocket. When asked whether he knew it was stolen, defendant said, "You know, officer, every gun out on the streets is hot." In street parlance, "hot" means stolen.
Miranda v. Arizona (1966) 384 U.S. 436.
Officer Abuhadwan corroborated his partner's testimony concerning the circumstances of defendant's arrest, including that defendant was outside the residence and admitted to having a firearm. After taking the pistol from defendant, the officer opened the chamber and saw two live rounds inside. The officers searched the residence for possible victims. Finding no one inside, they locked the door behind them.
The bullets had no fingerprints on them. Nor did the pistol.
It was stipulated that defendant was convicted in 2001 of conspiracy to commit bank fraud.
Defense
America Estrada was at the party when defendant was arrested. She was outside the residence with friends. The officers suddenly appeared and ordered them to kneel down and place their hands behind their heads. The officers said they were looking for a gun and asked who had it. Defendant was not outside at the time; he was inside the residence with others. After she and her friends complied with the officers' directions, some of the officers went inside the residence. One officer came back outside with defendant in handcuffs. Another officer had a gun in his hands. The officer asked defendant, "how does this thing work?" Defendant said he did not know.
Estrada's husband, David, was also outside the residence when the officers arrived. He recalled that defendant was inside, and the officers escorted defendant out.
Rebuttal
Officer Michael Richens responded to the Main Street location. Defendant was outside. The crowd was aggressive and hostile, so Officer Richens ordered them onto their knees with hands behind their heads. The front door was wide open. No one would say who lived in the apartment. When backup assistance arrived, some of the officers performed a safety sweep of the apartment. No one was inside. Officer Ron did not enter the residence on the night of defendant's arrest.
DISCUSSION
Pitchess Motion
Defendant contends the trial court erroneously denied his Pitchess motion without conducting an in camera review of the personnel records of Officers Ron and Abuhadwan. (Evid. Code, § 1045, subd. (b); Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019 (Warrick))We agree.
An officer's personnel records are discoverable under Pitchess based on a written motion describing the type of information sought and including an affidavit showing good cause for the discovery. "This good cause showing is a 'relatively low threshold for discovery.' [Citation.]" (Garcia v. Superior Court (2007) 42 Cal.4th 63, 70 (Garcia).) Assertions in the affidavits "'may be on information and belief and need not be based on personal knowledge [citation], but the information sought must be requested with sufficient specificity to preclude the possibility of a defendant's simply casting about for any helpful information.' [Citation.] If the defendant establishes good cause, the court must review the records in camera to determine what, if any, information should be disclosed." (Id. at pp. 70-71.)
"To show the requested information is material, a defendant is required to 'establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events.' [Citation.]" (Garcia, supra, 42 Cal.4th at p. 71, citing Warrick, supra, 35 Cal.4th at p. 1021.) "Counsel's affidavit must also describe a factual scenario that would support a defense claim of officer misconduct. [Citation.] 'That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.' [Citation.]" (Garcia, supra, at p. 71, citing Warrick, supra, at pp. 1024-1025.) The trial court will determine whether defendant's averments, read in light of the police reports, are sufficient to establish a plausible factual foundation for the alleged officer misconduct and to articulate a valid theory as to the information's admissibility. "Corroboration of or motivation for alleged officer misconduct is not required. [Citation.] Rather, 'a plausible scenario of officer misconduct is one that might or could have occurred.' [Citation.] A scenario is plausible when it asserts specific misconduct that is both internally consistent and supports the proposed defense. [Citation.]" (Garcia, supra, at p. 71; Warrick, supra, at pp. 1024-1026.) We review the trial court's ruling denying a disclosure request for an abuse of discretion. (Pitchess, supra, 11 Cal.3d at p. 535; see also Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
Defendant's Pitchess motion sought discovery of complaints against Officers Ron and Abudhadwan for a variety of things, including fabrication of evidence, dishonesty, and writing false police reports. The supporting attorney declaration stated that Officer Ron's police report for the underlying arrest contained the following falsehoods: defendant was initially detained outside the residence; defendant told the officers he had a weapon; a gun was found in defendant's pocket; and defendant confessed after waiving his Miranda rights. On information and belief, the attorney's declaration stated: defendant was inside the residence when the officers arrived; defendant never said he had a gun and did not in fact have one; and defendant never waived his Miranda rights and did not make the admissions attributed to him in the police report.
The trial court denied the motion, finding the statements in the declaration "unrealistic and bizarre and not believable" in light of the report that someone was seen at the location with a firearm. "There's no way the police could randomly figure out who to drag out of a house, and lo and behold had a gun."
As defendant points out, however, application of our Supreme Court's "plausible scenario" doctrine under Pitchess, does not depend on credibility. The applicable test is whether the scenario is "'one that might or could have occurred,'" as long as it "asserts specific misconduct that is both internally consistent and supports the proposed defense." (Garcia, supra, 42 Cal.4th at p. 71; Warrick, supra, 35 Cal.4th at pp. 1024-1026.) "To require a criminal defendant to present a credible or believable factual account of, or a motive for, police misconduct suggests that the trial court's task in assessing a Pitchess motion is to weigh or assess the evidence. It is not." (Warrick, supra, at p. 1026.)
The version of events set forth in the Pitchess declaration here presented an internally consistent scenario of police misconduct that supported defendant's proffered defense—he was unarmed and inside the apartment when the police arrived. Contrary to the police report and the officers' testimony, defendant never volunteered his possession of the Derringer. Instead, it was declared, the police planted the weapon on him and lied about his Mirandized admissions.
Accordingly, "[i]n denying defendant's Pitchess motion without an in camera hearing under section 1045, subdivision (b), the trial court erred. Defendant was 'entitled to an in camera hearing and a determination of relevance under the provisions of section 1045.' [Citation.]" (People v. Johnson (2004) 118 Cal.App.4th 292, 304.) This kind of error is subject to harmless error analysis. (See People v. Watson (1956) 46 Cal.2d 818.) We, however, cannot determine whether there is a reasonable probability the discovery sought by defendant would have led to admissible evidence helpful to defendant in his defense—for instance, there may have been no relevant complaints against the officers, eliminating any likelihood of prejudice. We agree with the reasoning and disposition of People v. Hustead (1999) 74 Cal.App.4th 410 and reverse and remand the matter to the trial court with directions specified below: If the trial court concludes defendant should have received information by virtue of his Pitchess motion, the proper standard for the trial court to use to determine prejudice is whether there is a reasonable probability the outcome would have been different had the information been disclosed. (People v. Hustead, supra, at pp. 421-423.)
Multiple Punishments
Defendant also contends his consecutive sentences for carrying an unregistered and loaded firearm (§ 12031, subd. (a)(1)) and being a felon in possession of a firearm (§ 12021, subd. (a)(1)) violated section 654's prohibition against multiple punishment. As we explain, because there is no evidence defendant harbored separate intents and objectives in the two offenses, the sentence in count 2 must be stayed pursuant to section 654.
Section 654 provides in pertinent part as follows: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "The test for determining whether section 654 prohibits multiple punishment has long been established: 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' (Neal v. State of California [(1960)] 55 Cal.2d [11,] 19.)" (People v. Britt (2004) 32 Cal.4th 944, 951-952.)
No express evidence was presented at trial as to defendant's intent and objective in violating counts 1 and 2. The evidentiary basis for defendant's connection with the firearm was limited to the brief period of time he was identified and arrested by the officers at the party. The trial court rejected defendant's section 654 objection, stating there was "a case right on point," but without making a finding as to separate intents in violating the two firearm statutes.
The Attorney General cites People v. Harrison (1969) 1 Cal.App.3d 115 for the proposition that multiple punishment is permissible for convictions under sections 12021, subdivision (a)(1) and 12031, subdivision (a)(1). In Harrison, a loaded handgun was recovered from underneath the passenger seat of a car driven by the defendant. Substantial evidence indicated the defendant was aware of the gun's presence and at least had constructive possession of the weapon. (Id. at pp. 118-119.) The Harrison court explained: "For an ex-convict to carry a concealable firearm is one act. But loading involves separate activity, and while no evidence shows that appellant personally loaded the pistol, there seem[s] little distinction between loading and permitting another to do so. Thus, two acts, not a single one, are necessarily involved and bring our case outside the prohibition against double punishment for a single act or omission." (Id. at p. 122.)
To the extent Harrison suggests that multiple punishment is required, as a matter of law, for the single act of a felon possessing a firearm and carrying a loaded firearm, we disagree. A search for substantial evidence of defendant's intent and objective must be undertaken, since "[w]hether multiple convictions are part of an indivisible transaction is primarily a question of fact. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)" (People v. Martin (2005) 133 Cal.App.4th 776, 781.) The reasoning of Harrison has not been universally followed. (See People v. Lopez (2004) 119 Cal.App.4th 132, 137-138 [§ 654 barred multiple punishment for unlawful possession of a firearm under § 12021 and unlawful possession of ammunition under § 12316, subd. (b)(1)—where the conduct is indivisible, a court should not "'parse[] the objectives too finely'"], quoting People v. Britt, supra, 32 Cal.4th at p. 953; People v. Perry (1974) 42 Cal.App.3d 451, 456-457 [§ 654 bars multiple punishment for simultaneous offenses of possession of a sawed-off shotgun and felon in possession of a firearm].)
In this case, there is no substantial evidence that defendant had an intent to do anything other than possess the handgun. Speculation regarding the existence of defendant's multiple intents and objectives, with no evidentiary support, "parses the objectives too finely," in the words of our Supreme Court. (People v. Britt, supra, 32 Cal.4th at p. 953.) Under these circumstances, section 654 applied and the sentence as to count 2 should have been stayed.
Court Security Fees
Without citation to authority or argument, defendant asserts his court security fee (§ 1465.8) and criminal conviction assessment (Gov. Code, § 70373) should be reduced because count 2 should have been stayed under section 654. We summarily reject the assertion because defendant fails to provide adequate argument or supporting legal authority. (People v. Stanley (1995) 10 Cal.4th 764, 793; Valov v. Department of Motor Vehicles (2005) 132 Cal.App.4th 1113, 1132.) In any event, the argument lacks merit. (See, e.g., People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327-1328 [security fee "'is mandated as to '"every conviction,"' even if the sentence on a conviction was stayed"].)
DISPOSITION
The judgment is reversed conditionally and remanded to the trial court with directions to conduct an in camera hearing on defendant's Pitchess motion. If the hearing reveals no discoverable information in the officers' personnel files, the trial court is ordered to reinstate the original judgment, and the judgment is ordered affirmed. If discoverable material exits and defendant can demonstrate prejudice, the trial court should order a new trial. If defendant is unable to demonstrate prejudice, the trial court is ordered to reinstate the original judgment and sentence as of that date. Additionally, in the event the judgment is reinstated, the trial court is ordered to stay the sentence in count 2 pursuant to section 654, the stay to become permanent upon completion of the sentence in count 1. In all other respects, the judgment is affirmed.
KRIEGLER, J.
We concur:
ARMSTRONG, Acting P. J.
MOSK, J.