Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 197734
Kline, P.J.
Appellant Jontae L. Bailey was convicted by a jury of possession of cocaine base for sale, a felony, and resisting arrest, the latter offense charged as a misdemeanor, for which he was sentenced to state prison for five years. His court-appointed attorney has filed a brief raising no legal issues and asking this court to conduct an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436. We shall affirm the judgment.
FACTS AND PROCEEDINGS BELOW
On January 4, 2006 (all dates are during that year), at approximately 5:30 p.m., San Francisco police officers conducting narcotics surveillance at Market and Taylor Streets observed a person approach appellant and, after a brief conversation, hand him money. Appellant thereupon reached into his pocket, produced a plastic baggy containing off-white rocks, and dispensed one of the rocks into the palm of the hand of the person who had handed him currency. One of the surveilling officers called other officers and asked them to arrest appellant, but was told they were unable to do so immediately because they were then involved in arresting another person. The surveilling officer then continued to watch appellant and observed him engaging in what the officer believed to be further drug transactions similar to the one he first observed.
Eventually, an unmarked police vehicle with its red and blue lights on pulled up near appellant, and two officers alighted from the vehicle and approached appellant. Appellant ran across Taylor Street, turned south and then made a left turn onto Golden Gate Avenue. One of the officers, Gregory Buhagiar, pursued appellant and the other returned to the police car and alerted other officers of the pursuit. As he crossed Jones Street, Officer Buhagiar was hit by a passing car and flipped over the windshield and back of the car onto the street. The officer got up, continued to give chase, saw appellant reach into his pants pocket, pull out a plastic bag, throw it to the ground, and then duck into a doorway. Officer Buhagiar retrieved the baggy, which contained rock cocaine, and confronted appellant, ordering him to come out of the doorway and stating that he was under arrest. Appellant refused to comply.
Officer Buhagiar testified that, because he feared appellant might have a weapon, he immediately grabbed appellant’s T-shirt, pulled him to the ground, ordered him to place his hands behind his back. Appellant ignored the officer’s commands, refused to place his hands behind his back, resisted and tried to escape. Fearing appellant might have a weapon in his waistband he could not see, Buhagiar used a “knee strike” to appellant’s peroneal area. The reason for the strike, the officer testified, was to “gain compliance through [infliction of] pain.” When appellant still refused to comply, the officer, who remained concerned about a weapon, delivered between four and seven “hammer strikes” to appellant’s “supra-scapula nerve.” Appellant then submitted and was handcuffed and arrested.
Officer Buhagiar asked appellant if he had sustained an injury and wanted an ambulance. Appellant responded: “Fuck you. I don’t [need] anything from you. You hit like a bitch.” By this time Officer Buhagiar’s adrenaline had subsided and he realized he had been injured by the car that hit him. An ambulance was called, he was taken to the hospital, and it was determined that Buhagiar suffered a contusion to his right thigh and a strained ankle.
After appellant was taken to the Southern Station, he was found in possession of $733, consisting almost entirely of $20, $10 and $5 bills. The crime lab determined that the substance in the plastic baggy taken from appellant was 2.13 grams of base rock cocaine.
An information, filed on February 2, charged appellant with possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and resisting arrest in a manner resulting in serious bodily injury to a law enforcement officer (Pen. Code, § 148.10). It was further alleged appellant had a prior conviction within the meaning of Penal Code section 667.5, subdivision (b), and three prior convictions within the meaning of Health and Safety Code sections 11370, subdivisions (a) and (c), and 11370.2, and Penal Code section 1203.07, subdivision (a)(11).
On February 17, appellant filed a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) seeking production of Officer Buhagiar’s personnel records, as well as those of Officers Ryan and Cunningham, who also participated in appellant’s arrest. In the manner prescribed by Evidence Code section 1043, the court ordered that the names, addresses and telephone numbers of any persons who may have complained that said officers used excessive force or fabricated evidence be provided to defense counsel after an in camera inspection by the court and issuance of a protective order relating to the use of such information.
After a preliminary hearing on January 20, the trial court found satisfactory evidence appellant committed the charged felony and he was held to answer for the charge. A hearing on in limine motions was held on July 11, at which time the felony charge of resisting arrest in a manner resulting in serious bodily injury to a law enforcement officer (Pen. Code, § 148.10) was reduced by the district attorney to a misdemeanor resisting arrest (Pen. Code, § 148) due to the prosecutor’s judgment that the injury Officer Buhagiar suffered while pursuing appellant did not result in the degree of bodily injury required by the felony offense.
Trial commenced on July 13. On July 19, the jury returned a verdict of guilty of both of the charged offenses. After the district attorney represented that the prosecution would not seek a sentence exceeding five years, appellant withdrew his previous denial of one of the prior charged felonies and admitted the truth of the alleged prior. Prior to that admission, defense counsel stated that he had informed appellant, and appellant understood, that the admission would support an additional three-year enhancement of his state prison term and that appellant was ineligible for probation. The trial court then advised appellant of the rights he would be giving up. Appellant thereupon admitted the prior felony offense. Finding that there was a factual basis for the admission, and that after being informed of his rights appellant had voluntarily and intelligently waived those rights and admitted the truth of the prior felony conviction well knowing the consequences of doing so, the court accepted the admission. Stating his belief that the court would not use the other prior felony convictions alleged to aggravate the sentence, the district attorney moved to strike those allegations in the interests of justice pursuant to Penal Code section 1385, and the motion was granted.
Immediately thereafter, appellant moved for judgment notwithstanding the verdict, based on his contention that it should have been clear to the court that the trial testimony of Officer Ryan, who conducted the surveillance that led to appellant’s arrest, was untruthful as it related to what he observed and the information he relayed to other officers. The trial court denied the motion.
At the sentencing hearing on August 9, appellant was sentenced to state prison for the aggravated term of five years for violation of Health and Safety Code section 11351.5. For his misdemeanor violation of Penal Code section 148, the court sentenced appellant to 218 days (the credit for time served) to be served concurrently. The court imposed the upper term for the base offense because appellant’s actions reflected planning and premeditation to have drugs in his possession for financial gain (Cal. Rules of Court, rule 4.421(a)(8)); he had suffered numerous convictions for drug-related offenses (rule 4.421(b)(2)); he suffered a prior prison term for a drug offense (rule 4.421(b)(3)); he was on parole and probation at the time he committed the present offense (rule 4.421(b)(4)); and he performed poorly under formal supervision on the state and local levels in the past (rule 4.421(b)(5)).
In view of appellant’s admission of the prior felony at issue and the district attorney’s agreement not to seek a sentence in excess of five years, and in the interests of justice, the court dismissed the allegation of a prior conviction of sale of a controlled substance. However, though the three-year enhancement for that prior was not imposed, the court stated that “for purposes of [appellant’s] probation and eligibility [for probation], . . . the allegation of prior conviction does remain in full force and effect.”
Appellant was awarded 218 days of actual days spent in custody plus 108 days for good conduct, for total credit of 326 days. The court also imposed a $300 Victim’s Indemnity Fund fine, a $300 parole fine which was stayed pending successful completion of parole, and a $20 court security fee. A DNA sample was also ordered pursuant to Penal Code section 296.
DISCUSSION
The record—particularly the transcript of the statements of appellant, defense counsel and the district attorney at the sentencing hearing—make clear that appellant elected to go to trial because of his confidence he could persuade the jury that the crucial testimony of the police officer witnesses was untruthful and not credible. Appellant’s inability to persuade the jury of this may well have been due to the failure of his Pitchess motion to produce evidence of prior complaints that any of the officers who testified had fabricated evidence or engaged in misconduct. As earlier noted, the trial court conducted an in camera review of the personnel records provided by the San Francisco Police Department in response to appellant’s Pitchess motion. The record before us contains a sealed transcript of the trial court’s in camera hearing, at which it asked San Francisco Police Department Legal Officer John Hart whether he made a diligent and thorough search of the personnel records of Officers Buhagiar, Ryan, and Cunningham to determine whether complaints had been received that any of them had fabricated evidence or used undue force. The sealed transcript reveals that the trial court complied with the procedures prescribed by the Supreme Court in People v. Mooc (2001) 26 Cal.4th 1216, 1229-1230.)
Officer Hart advised the court that his search of the officers’ personnel records produced materials potentially relevant to the allegations of appellant’s Pitchess motion and submitted those documents to the court. (See City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84.) The court accepted that representation and, after reviewing the proffered documents, indicated on a “log sheet” which were and which were not potentially relevant to the motion and then placed all of the materials in a sealed envelope “until further order of the court.” The Wende brief filed in appellant’s behalf correctly points out that the documents provided by the police department are not included in the appellate record and asks that we augment the record with them and determine whether the trial court’s determination as to what was discoverable was correct, and that no potentially relevant documents were kept from defense counsel. Rule 8.155(a), of the California Rules of Court authorizes such augmentation, and the documents have been obtained from the San Francisco Superior Court by the clerk of our court.
Our review of those documents reveals that no documents or other materials potentially relevant to appellant’s Pitchess motion were withheld from defense counsel.
The record establishes that the verdict and judgment are supported by substantial evidence.
No evidentiary or other ruling by the court was erroneous and prejudicial.
There was no sentencing error.
Appellant was at all times represented by able counsel, was appropriately advised by the court of the consequences of his waiver of rights and admission of a prior felony conviction, and his waiver of rights and admission fully appear to have been made voluntarily and intelligently.
DISPOSITION
For the foregoing reasons, the judgment is affirmed.
We concur: Haerle, J. Lambden, J.