Opinion
A120436
6-24-2009
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH BENITEZ, Defendant and Appellant.
Not to be Published in Official Reports
Defendant Joseph Benitez challenges his conviction for one count of first degree burglary, arguing that the trial court erroneously denied his Pitchess motion seeking the personnel files of the arresting officers for evidence that on other occasions they had used excessive force or planted evidence on a suspect. We agree that the trial court should have reviewed the files in camera, but find that there is no reasonable probability that such an examination would have led to evidence of sufficient weight to change the outcome of the trial. Therefore we shall affirm.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Background
Janet Bowles testified that she lives in Alameda with her teenage daughter, Mackenzie. On November 18, 2005, around 11:30 p.m., she left home to pick up Mackenzie who was at a movie with friends. She left the lights on and locked the house. Mackenzies bedroom window was open three to four inches and was locked so that it could not be opened further. There was a screen on the outside of the window. When she returned with her daughter approximately 40 minutes later, she heard "somebody . . . throwing something or hitting something or slamming something. It was a big noise. And [she] told Mackenzie to just stand still, just stop." Bowles left to go to a neighbors house when she saw a man holding a white canvas tote bag running towards her. She yelled, "What are you doing? Stop." The man ran by her, looking at her briefly. She saw his face clearly. "To me, he looked Latin . . . ." The man then ran up the street, leaving scattered on the ground outside the house several items from Bowles home, including a bag, a CD player, a Game Boy and two games, a ring box and a pedometer.
Bowles called 911. She described the man she had seen as Mexican, wearing baggy clothes and a hat. She told police that the man was approximately five feet seven inches tall and 150 pounds. Later that night she identified defendant in the back of a police car as the man she had seen. She also identified defendant at a preliminary hearing and at trial.
Mackenzie testified that when she and her mother returned to the house shortly after midnight they heard "thumps like . . . furniture moving on a wall, but like really, really loud." Her mother went outside and Mackenzie followed. "[M]y mom was towards the pathway where it kind of leads towards our neighbors house, and I was just a couple of steps away from her and thats where we heard the crash. And the guy just ran." The man ran past Mackenzie and Bowles. He was looking down, so Mackenzie could not see him well. She thought he might have been African-American. He was wearing a hat and baggy blue jeans and was carrying a white bag. When Bowles was on the phone with the 911 operator, Mackenzie noticed that her games and DVD player were missing. In her room she noticed on her bed broken glass from the window. She identified the bag recovered on the street as the bag she had seen the man running with, and items recovered from the bag as the ones that were missing from her house.
A neighbor testified that around 12:15 a.m. on the night in question, he was awake in bed. He heard "a lot of commotion, a lot of sirens and cars speeding down the street." Looking out his window he saw several police cars in front of the house. From his bathroom window he "could look down into [Bowles] yard [and] saw a gentleman in the backyard." He immediately thought that this was "probably what the police [were] combing the streets for." The light was off in the bathroom and "it was pretty bright that evening so there was no question that it was a man. . . . [H]e was kind of darting back and forth and crouching down behind the trash cans. And then he got up and moved around I think maybe to look over the fence." The man, whom the neighbor identified as defendant, was holding "something in his hand or over his shoulder," though the neighbor could not remember what. Eventually defendant lay or crouched down behind some trash cans.
The neighbor returned to his bedroom window, opened it, and quietly told police officers who were there, "Hes next door." The neighbor observed the officers go to the end of the fence and open the gate to the yard and a police dog came in and found defendant. The police commanded defendant to surrender but he did not do so immediately. The neighbor testified that defendant "wasnt resisting but he also wasnt completely . . . submitting. . . . But he wasnt being violent and . . . wasnt wielding anything that I could see." The dog had defendants leg in its mouth. He did not see defendant hit the dog, nor did he see any aggression towards defendant other than the dog holding his leg and the police placing him in handcuffs. The neighbor identified defendant as the man he had seen. He had "no question it was the same man." He did not observe the police place anything in defendants pockets, and testified that defendant never appeared to be sleeping or passed out.
Another neighbor testified that sometime after midnight police officers knocked on his door, told him there had been a burglary in the neighborhood and asked for permission to take the police dogs into his yard to track the burglar. He testified that the police behaved "professionally" when dealing with defendant. He heard defendant ask, "Why did you let that dog bite me?" and heard the officers telling the dog, "good boy." He also heard the police say, "Youll be okay, sir. Well have it looked at if you want," and stated that neither the police nor defendant was being "confrontational."
Eileen Bartosz, an officer with the Alameda Police Department, testified that in the early morning hours of November 19 she took a statement from Mackenzie and had her observe defendant. Mackenzie told her that "the man they showed me kind of looks like the guy that ran from our house; I am not sure because I didnt see his face." Bartosz accompanied Officer Abenoja to the hospital where defendant was being treated. When Abenoja picked up defendants pants, there was "a jingling noise" and they discovered jewelry in the pocket. Bowles identified the jewelry as hers.
Chad Rech, another officer with the Alameda Police Department, testified that he responded to Bowles house on November 19. He was there when defendant was arrested but did not observe the arrest. At the hospital, he photographed defendants injuries, which consisted of several cuts to his lower left shin and in the area of his left eye, as well as a dog bite on his right leg. The injuries other than the dog bite were consistent in appearance with glass cuts.
Henry Guillen, the police service dog trainer and lead K9 officer for the Alameda Police Department testified that he works with a police dog named Mido. Mido is trained in open area searches and, specifically, urban tracking and scent discrimination. On November 19, Guillen and Mido went to Bowles house along with officer Abenoja and his police dog, Billy. They gave Mido a CD player that had been taken from the house and dropped outside, and which had on it what appeared to be blood, and "commanded him to begin his track to locate the last person who held the item." Mido immediately "took off southbound" and the officers followed behind him. When Mido reached a fence approximately 72 feet from where he began tracking, he started "scratching, whining and barking," and attempted to jump over the fence. Guillen recognized that behavior "as his positive location of the odor that he was . . . commanded to track from."
Guillen "attempted to look over the fence to get a better view," but could not see anything because it was dark. He located the home owner and received permission to enter the yard. Guillen and Mido entered the yard through the gate and Guillen commanded Mido to continue tracking. Mido "immediately ran to the back of the fence," and began sniffing at a blue jean jacket, which Guillen understood "as his positive alert of locating a similar odor that he had been asked to locate." Guillen noticed fresh blood stains on the left sleeve of the blue jacket. Abenoja entered the yard and Guillen instructed Mido to continue tracking. The dog "immediately darted to a southeast direction through the yard" to an area near a deck and Guillen followed, shining his flashlight. He illuminated a man fitting the description of the dispatch he had received. The man was positioned between the deck and the garbage cans, lying on his left side with his hands "tucked in his stomach area." Guillen commanded Mido to lie down, and Mido obeyed, lying about two feet from defendants feet.
Defendant did not show his hands when Guillen ordered him to do so, but said, "What the fuck do you want?" Guillen ordered defendant to show his hands at least two or three more times, but he did not comply. Defendant then rolled over and kicked Mido in the face. "Midos head snap[ped] back and I saw him grab a shoe, spin around, pull[] the shoe off, come back around and go back in a laying down position as he was originally commanded. Guillen saw that defendant was preparing to kick Mido again and he "immediately commanded Mido to apply a bite hold on [defendant] to detain him." Guillen continued to order defendant to show his hands, but defendant replied, "Get this fucking dog off me," and continued to kick at Mido. When Guillen saw that defendant did not have a weapon, he grabbed defendants right hand and placed handcuffs on it, but defendant would not allow him to handcuff the left hand. "Officer Abenoja had to assist me in trying to get his hands together. It took the both of us to get his hands behind his back and place him in handcuffs as hes still kicking with his leg with the dog." At no point did Mido act contrary to Guillens commands or exhibit unnecessary force.
Officer Abenoja testified that the night of the burglary he also used the CD player to get his dog, Billy, on the scent of the suspect. Billy also immediately headed south but lost the scent. Abenoja followed Guillen to act as a cover officer. Abenoja contacted the homeowner and confirmed that there were no animals and no people that he knew of in the yard. Abenoja followed Guillen into the yard, where he heard Guillen give "loud, clear orders [that] we were the police department and show me your hands, three to four times." Abenoja heard the person respond "something to the effect of, `What the fuck. Im sleeping. " He observed defendant on the ground, and saw that Mido had a bite hold on his leg and that Guillen was struggling to put handcuffs on him. Defendant was kicking Mido with his free foot and was also trying to kick with the leg that Mido was holding. Abenoja went to help Guillen. Defendant "was pulling his arms away. He wasnt assaultive towards me, he wasnt striking me, but he wasnt complying. He wasnt letting us handcuff him. He was forcing his hands apart, but we overcame his strength and were able to handcuff him." When Abenoja was at the hospital with defendant, he picked up defendants pants after they had been removed by hospital staff and knew by the weight or noise made when he lifted the pants that there was something in the pocket. "I stuck my hand in there with Officer Bartosz standing right here. And I pulled out a handful of what looked like jewelry. . . . I looked at her and she saw it, I put it back in the pocket and handed it to her." Bartosz made an inventory of the contents of defendants pants.
Defendant did not call any witnesses.
Defendant was charged with one count of first degree residential burglary (Pen. Code, § 459.) The complaint additionally alleged 13 prior felony convictions, five of which were alleged as "strikes" under section 1170.12, subdivision (c)(2)(A) and section 667, subdivision (e)(2)(A). A jury found defendant guilty of the burglary and after waiving his right to a jury trial on the priors, the trial court struck two of the alleged prior convictions at the prosecutors request and found the remaining 11 alleged prior convictions to be true. The court denied a motion to strike four of the prior convictions and sentenced defendant to 25 years to life on the burglary charge with an additional consecutive 10 years for the prior convictions. Defendant timely noticed an appeal.
Further statutory references are to the Penal Code.
Discussion
Defendant challenges the trial courts denial of his Pitchess motion seeking to obtain the personnel records of the officers involved in his arrest. "A motion for discovery of peace officer personnel records is `addressed solely to the sound discretion of the trial court. (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 535.) A review of the lower courts ruling is subject to an abuse of discretion standard." (People v. Gill (1997) 60 Cal.App.4th 743, 749.)
Before trial defendant made a motion to discover the personnel files of Officers Abenoja, Guillen, and Reynolds, a third officer present when defendant was arrested. The moving papers alleged that the police report was "false in many respects. Mr. Benitez is not the person who allegedly burglarized the residence located at 2801 Marina Drive in Alameda. In fact, Mr. Benitez was not identified by one of the witnesses during the show-up. Mr. Benitez was heavily passed out when they encountered him in the backyard . . . . Mr. Benitez had no visible weapon on his person at the time of the incident and in fact, none was recovered on his person. He was not in any condition to fight off anyone much less a canine. . . . He did not kick Officer Guillens Police Service Dog in the face twice. He was brutally attacked by the canine and the police officers present did not prevent Mr. Benitez being mauled by the dog. Officer Guillen along with the others eagerly seek [sic] the dog on Mr. Benitez even when he appeared to be harmless. He was attacked so severely that they had to transport him immediately to the hospital where he received emergency medical treatment on his open wound from the dog bite." The motion alleges that defendant had a blood alcohol level higher than .11 when he was arrested, and that he was searched at the scene and officers found no evidence. "It was only at the hospital that the officers allegedly found some jewelry on his person." The motion requested discovery "as to any acts of aggressive behavior, violence or attempted violence, and/or excessive force or attempted excessive force based upon the factual scenario that Officers Abenoja, Guillen and Reynolds, used excessive force by physical restraint and by the canine unit to detain Mr. Benitez which resulted in him suffering from severe cuts and open wound." The motion also requested discovery of any records pertaining to fabrication of evidence or "misstatement of facts."
At the hearing, the trial court stated that it had "a problem in finding a plausible factual scenario here to justify an in camera hearing . . . ." Defendant argued that the Pitchess motion related to the fabrication of evidence. The trial court asked, "I guess its your theory that jewelry was taken during the burglary and that the police officer setting the dog on the defendant realized that they had stepped out of bounds, and therefore planted the jewelry on the defendant so as to cover up their actions." Defense counsel replied, "Correct. They overdid their conduct, how they treated Mr. Benitez, and as a result he was severely injured by the attack of the dog, and possibly by the police officer. Hes got numerous injuries on him, and to cover an excess of that, theres sort of this fabrication of the evidence in here. It justifies their treatment in arresting him this way, if they say he was in fact the person who burglarized the place, or they have a strong suspicion, that he did do it. Our contention is that hes not . . . ."
The trial court ruled that "If we use the adjective `plausible, the theory that youve mentioned i[n] which . . . they have planted the jewelry on the person in the hopes that it would make the case stronger, even in the faces of the positive identification is not plausible. Its . . . implausible, so therefore the Pitchess motion is denied."
"Pitchess v. Superior Court, supra, 11 Cal.3d 531, which provided for the disclosure of a police officers personnel records in certain situations, has since been codified in sections 1043 through 1045 of the Evidence Code. [Citation.] Section 1043 of this code outlines the procedure for requesting such disclosure. It requires the party seeking the records to submit affidavits showing `good cause for their discovery, setting forth the materiality of the requested documents and stating `upon reasonable belief that the governmental agency actually has them. [Citations.] Once good cause has been established, the trial court must examine the material in camera to determine its relevance to the case according to guidelines set out in Evidence Code section 1045. `The statutory scheme thus carefully balances two directly conflicting interests: the peace officers just claim to confidentiality, and the criminal defendants equally compelling interest in all information pertinent to his defense. [Citation.] The `relatively relaxed standards for showing good cause are offset by the protective provisions for in camera review." (People v. Hustead (1999) 74 Cal.App.4th 410, 416.)
"To obtain Pitchess information, the defendant must file a written motion. (§ 1043, subd. (a).) It must describe `the type of records or information sought and include `[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 identified has the records or information from the records. (§ 1043, subd. (b)(2) &( 3).) This good cause showing is a `relatively low threshold for discovery. [Citation.] 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 defendants 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." (Garcia v. Superior Court (2007) 42 Cal.4th 63, 70-71, fn. omitted.)
"To determine whether the defendant has established good cause for in-chambers review of an officers personnel records, the trial court looks to whether the defendant has established the materiality of the requested information to the pending litigation. The court does that through the following inquiry: Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? Under what theory would the requested information be admissible at trial? If defense counsels affidavit in support of the Pitchess motion adequately responds to these questions, and states `upon reasonable belief that the governmental agency identified has the records or information from the records ([Evid. Code,] § 1043, subd. (b)(3)), then the defendant has shown good cause for discovery and in-chambers review of potentially relevant personnel records of the police officer accused of misconduct against the defendant." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1026-1027.)
In Warrick, "defendant was charged with possessing cocaine base for sale. Defense counsels declaration in support of the Pitchess motion, however, denied that defendant had `possess[ed] any narcotics for the purpose of sale on the date of his arrest and denied that defendant had discarded any rocks of cocaine. Instead, the declaration stated, defendant was at the scene to buy cocaine and, fleeing at the sight of the officers because he feared arrest for an outstanding parole warrant, ran past the actual seller. Defense counsel postulated two explanations—either the officers did not know who had discarded the rocks of cocaine and they falsely accused defendant of having done so, or they knew who had discarded the cocaine but falsely accused defendant. Under either theory, defense counsel asserted, the officers falsely arrested defendant and made false statements in the police report to support his arrest." (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1022-1023.) The Supreme Court held that the court of appeal had erred in finding this explanation implausible. "By denying the factual assertions made in the police report—that he possessed and discarded the cocaine—defendant established `a reasonable inference that the [reporting] officer may not have been truthful. " (Id. at p. 1023.) The court rejected the standard imposed by the court of appeal that a "defendant must show not only that the proposed factual scenario when `[v]iewed in conjunction with the police reports will support his allegations of officer misconduct [citation], but also a reasonable probability that the defendants version of events actually occurred." (Ibid.)
In Larry E. v. Superior Court (1987) 194 Cal.App.3d 25, 28, the minor filed a motion seeking discovery of complaints for "aggressive behavior, violence or excessive force, improper police tactics, dishonesty and racial or class prejudice" where it was alleged that the minor had resisted arrest before police used force to subdue him. The Court of Appeal held that the declaration in support of the Pitchess motion was sufficient to require in camera review because the minor alleged that he did not use force against the officers, and that the officers lied about his actions and planted evidence. (Id. at p. 31.) The court held that the information was relevant to show that the officers had a motive to lie and could show potential bias that would affect the officers credibility as witnesses.
Likewise in Gill, "appellant asserted that `[i]t will be a defense in this matter that the alleged contraband was placed on [appellant] by [the police officer] to cover up for his use of excessive force and that the officer has [a] pattern of fabricating probable cause in dope cases. " (People v. Gill, supra, 60 Cal.App.4th at p. 750.) The court found that the trial court abused its discretion in denying the Pitchess motion. (Ibid.)
The explanation here was almost identical to that in Warrick, Larry E., and Gill. Defendant denied that he had committed the robbery and alleged the police had planted evidence on him to cover up the fact that the police dog had attacked him with excessive force. While a jury may or may not have believed this explanation, the likelihood of the fact finder accepting the defendants version is not the test. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1024.) The threshold of plausibility is far lower. "[A] plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges." (Id. at p. 1026.)
While the trial court in this case therefore should have granted the Pitchess motion and examined the officers records in camera, in order to obtain a reversal "[i]t is settled that an accused must demonstrate that prejudice resulted from a trial courts error in denying discovery." (People v. Memro (1985) 38 Cal.3d 658, 684, overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181.) Defendant must demonstrate that "it is reasonably probable that discovery would have led to admissible evidence of sufficient weight to be helpful to appellant in his defense." (People v. Gill, supra, 60 Cal.App.4th at pp. 750-751.) Here, the evidence supporting the verdict was overwhelming. Bowles positively and with great certainty identified defendant as the man she had seen running from her house immediately after the burglary. Defendant had cuts on his arms consistent with broken glass and there was fresh blood on the jacket that police found near him. From the scent on the bloodied CD player left outside the house after the burglary, the trained dog tracked to defendant. A neighbor saw defendant darting around in the yard before he was arrested, which is inconsistent with defendants story that he was passed out drunk when police encountered him. At the hospital, two officers found Bowless jewelry in defendants pants pocket. And two neighbors confirmed the testimony of Guillen and Abenoja that they used only the force necessary to place handcuffs on defendant, who was resisting. Even if the Pitchess motion had revealed evidence of officer misconduct in previous cases, a different outcome is not reasonably probable given the strength of the evidence tying defendant to the burglary.
Disposition
The judgment is affirmed.
We concur:
McGuiness, P. J.
Siggins, J.