Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 207496.
McGuiness, P.J.
Victor D. Brown (appellant) appeals from a judgment entered after a jury found him guilty of selling cocaine base (Health & Saf. Code, § 11352, subd. (a), count 1) and giving false information to a police officer (Pen. Code, § 148.9, subd. (a), count 3). He: (1) requests that we examine the documents the trial court reviewed in camera pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and determine whether the trial court properly exercised its discretion; and (2) contends the trial court violated his sixth amendment right to confrontation by precluding him from cross-examining police officers as to certain issues. He contends that even if the errors were harmless, their cumulative effect warrants reversal. We reject his contentions and affirm the judgment.
Factual and Procedural Background
On January 5, 2009, an information was filed charging appellant and co-defendant Eugene C. Bowden with sale of cocaine base (Health & Saf. Code, § 11352, subd. (a), count 1) and charging appellant with misdemeanor false personation (Pen. Code, § 529, count 2) and giving false information to a police officer (Pen. Code, § 148.9, subd. (a), count 3). The information further alleged as to appellant that he had a prior conviction for sale of a controlled substance.
At trial, San Francisco police officer Chandra Johnson testified that at about 2:15 p.m. on December 8, 2008, she was working undercover as a “designated buy officer in a buy operation.” This was the second time she had acted as a buy officer and had a “pretty good recollection” of the work she performed that day. On the 100 block of Turk Street, “an area in the Tenderloin district known to be plagued with drug dealing, selling, buying and using, ” she approached Bowden and asked if he had a “solid, ” which is “street terminology for crack cocaine.” Bowden immediately responded and said, “Come with me.” Johnson followed Bowden as he quickly walked over to appellant, who was wearing a black and gray Raiders jacket and was loitering in the area, about 15 feet away. Bowden said to appellant, “She needs a solid, ” and Johnson tried to give some money to appellant. Appellant directed her to give the money to Bowden, saying, “I don’t know that bitch.” Appellant then spat a round off-white substance wrapped in clear plastic from his mouth and handed it to Johnson, who handed a $20 bill to Bowden. Johnson recognized the substance to be base rock cocaine. Johnson testified it was “very typical” for “sellers of crack cocaine [to] work in teams of two” so that “if [police] approach[es] them and arrest[s] them, all the evidence is not on one person.”
The substance tested positive for 0.18 grams of cocaine base.
As Johnson started to walk away, Bowden followed her, and in a “slightly aggressive” manner, asked her to “help him out.” In order to get him to leave, and for her safety, Johnson gave him a $5 bill. Johnson then gave a prearranged signal to another officer to indicate the transaction had been completed. About 30 seconds later, Bowden and appellant were arrested and Johnson witnessed the arrests. The police recovered the $5 bill but never found the $20 bill. No drugs were found on appellant, and no marked city funds or drug paraphernalia were found on appellant.
San Francisco police officer Kevin Moylan testified he was the “close cover officer” for Johnson and was in charge of watching her and insuring her safety, and also relaying his observations to the arrest team. He watched from across the street as Johnson approached Bowden and had a brief conversation with him. Johnson and Bowden then walked about 20 to 30 feet and stopped where appellant was standing. Appellant was wearing a black Raiders jacket. Johnson, Bowden and appellant had a conversation and appellant put his hand to his mouth, took something from his mouth, and handed it to Johnson, who gave Bowden some money. As Johnson walked away, Bowden followed her and Johnson handed him some more money. Moylan testified he believed Bowden was the “hook” in the transaction, i.e., a person “who assists a drug seller.” It was common for a hook to ask the buyer for something in return for assisting in the sale. Johnson sent a “bust signal” that was prearranged and Bowden and appellant were arrested.
San Francisco patrol supervisor Gerald D’Arcy testified he and Sergeants Cota and Obrochta arrested appellant for sale of crack cocaine. Appellant was wearing a black Oakland Raiders jacket at the time of his arrest. D’Arcy searched for but did not find marked city funds in the area. He recovered $152 in non-marked city funds from appellant’s right front pants pocket. The $152 consisted of four 20 dollar bills, two 10 dollar bills, five 5 dollar bills and 27 one dollar bills. D’Arcy testified the denominations indicated appellant was “actively selling narcotics in the area.”
San Francisco police officer Nick Donati testified that about 2:15 p.m. on December 8, 2008, he and Officers Bowman and Ferrando arrested Bowden for selling crack cocaine. At the scene, he searched Bowden and found one $5 bill of marked city funds in his front waistline. He searched Bowden and the area for other marked city funds but did not find any. He time-stamped the $5 bill to show it was used in this operation. When Donati booked appellant at the police station, appellant told him his name was Deangelo Deshawn Brown and that his date of birth was October 5, 1973. He said he had been issued a citation earlier in the week and that the citation was with the rest of his personal property. Donati found the citation and entered the name into the computer. When Donati saw that the photograph of Deangelo Deshawn Brown that came up on the screen did not resemble appellant, he conducted a search on the fingerprint computer and discovered appellant’s true identity.
Bowden testified he pleaded guilty to selling an illegal substance on two prior occasions, in April 2006 and April 2008. He stated, “I’m an addict so that’s what I do, ” i.e., sell drugs. He did not work with anyone else in those cases. He was working alone on December 8, 2008, as well, and did not know appellant. On that day, Johnson, who looked like an addict, approached him and asked for a solid. They started walking and came upon appellant. He told appellant that Johnson wanted a solid and asked him to “[h]ook her up.” Appellant said, “I don’t know you or this bitch, ” and told them to go away. Johnson “kind of got spooked” and walked away. Bowden thought, “I don’t want to lose her. I need her money.” He had “a little bit” of drugs on him so he followed Johnson and handed the drugs to her, and she gave him $20. The drugs were actually worth $4 or $5. As Johnson walked away, Bowden asked, “You going to give me something for hooking you up?” At that point, Johnson gave him another $5, for a total of $25.
After the trial court dismissed count 2 (misdemeanor false personation), the jury returned guilty verdicts against appellant and Bowden on count 1 (sale of a controlled substance) and a guilty verdict against appellant on count 3 (giving false identification to the police). Appellant admitted the enhancement. At sentencing, the trial court granted appellant’s motion to strike the enhancement and sentenced him to three years in state prison, consisting of the mitigated term on count 1 and a concurrent six-month term on count 3.
Discussion
1. Pitchess
Appellant asks us to examine the documents the trial court reviewed in camera pursuant to Pitchess, supra, 11 Cal.3d 531, and determine whether the court properly exercised its discretion. The People (respondents) do not object, stating “appellant is entitled to the procedure he requests.”
“[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. (Evid. Code, § 1043, subd. (b).) 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.’ (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84.) 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.’ (Ibid.) If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. (Chambers v. Superior Court (2007) 42 Cal.4th 673, 679.) Subject to certain statutory exceptions and limitations (see Evid. Code, § 1045, subds. (b)-(e)), ‘the trial court should then disclose to the defendant “such information [that] is relevant to the subject matter involved in the pending litigation.’ ” (People v. Mooc (2001) 26 Cal.4th 1216, 1226, quoting Evid. Code, § 1045, subd. (a); see also Warrick v. Superior Court [(2005)] 35 Cal.4th [1011, ] 1019.)” (People v. Gaines (2009) 46 Cal.4th 172, 179.)
Here, appellant filed a motion for discovery from the personnel files of Johnson, Moylan and Donati for evidence relating to any complaints that had been filed against them “for acts indicating or constituting dishonesty, false arrest, illegal search and/or seizure, omission of relevant information from reports, the Fabrication of charges and/or evidence, and acts involving a ‘morally lax’ character.’ ” The parties thereafter stipulated that the trial court should review the files of Johnson and Donati for evidence of complaints of police misconduct, fabrication of evidence and dishonesty. The court conducted an in camera hearing and no evidence was disclosed.
Because we could not initially determine the specific documents reviewed during the in camera hearing, we ordered augmentation of the record for the purpose of creating a record from which this court could determine whether the documents reviewed by the trial court were discoverable. (People v. Mooc, supra, 26 Cal.4th at p. 1231.) We eventually received documents from the trial court sufficient for us to conduct a review. We independently reviewed the sealed documents the trial court reviewed in camera and the sealed reporter’s transcript of the in camera hearing. Based on our review, we conclude the trial court did not abuse its discretion in refusing to make any disclosures. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039 [the standard of review for an order denying a Pitchess motion is abuse of discretion].)
2. Sixth Amendment Right to Confrontation
(a) Other arrests
(1) Background
Appellant filed a pretrial motion in limine requesting “that evidence of two other arrests of other individuals under circumstances which are remarkably similar to the arrest in the present case be used for impeachment purposes.” At a pretrial hearing, defense counsel stated the police reports from all three cases “read alike” including a statement by one party to the effect of, “Hey, can you hook me up?, ” a payment of additional money to the hook, and an arrest of two individuals for one sale. The prosecutor objected that police reports from other arrests were irrelevant and would confuse the jury. The court found the issues were relevant so long as they involved impeachment and cross-examination. Defense counsel agreed to approach the bench before asking about the reports.
At trial, defense counsel asked Johnson about similar buy-bust arrests she made the same day appellant was arrested. Johnson testified her team made an arrest approximately 14 minutes before the incident that led to appellant’s arrest. She did not recall whether her team made another arrest approximately 45 minutes after the incident. Counsel also asked Johnson when she spoke with, or debriefed, Donati, the officer who wrote the police report in appellant’s case. Johnson replied, “We spoke briefly about it right afterward and then did like a second debriefing when he sat down to write his report.” Counsel asked Johnson how many arrests she made after appellant’s arrest, and the prosecutor made a relevance objection. Defense counsel stated, “Well, it goes to several issues, her ability to recollect when the report was prepared and her memory about the incident and what she conveyed to the other officers and when that occurred. I’m trying to refresh her memory because she said she doesn’t remember exactly when the report was prepared.” The prosecutor responded that the police report was “hearsay” and therefore irrelevant. Defense counsel acknowledged that the number of arrests that took place that day was irrelevant “in and of itself, ” but that it “[went] to the timing of when [Johnson] debriefed the other officers and when the statements were made.” The court stated it did not understand, and defense counsel stated, “All right. I’ll move on, Your Honor. Thank you.”
Later, defense counsel again asked Johnson how many arrests her team made that day, and Johnson responded there were between six and eight separate incidents. Counsel again asked when she debriefed Donati about appellant’s arrest, Johnson responded that she spoke with him at the time the incident occurred and also at the end of the night when he “sat down to write the report.” Defense counsel asked if “the other two arrests, the one right before this and the one after this, were very similar in factual detail.” The court overruled the prosecutor’s objection, but before Johnson answered the question, defense counsel showed her the police reports of the buy-bust arrests that took place before and after appellant’s arrest. After Johnson read the reports, counsel asked, “Is it a fair statement that in numerous of these incidents that the same thing occurred, somebody said, ‘Can you help me out?’ and you gave individuals $5 bills?” The prosecutor objected, and defense counsel stated, “I’m just trying to make sure that this witness isn’t confusing those matters with this one.” The court sustained the objection. Counsel then asked Johnson if she used the same marked $5 bill in each arrest that day. She did not recall.
(2) Discussion
Appellant contends the trial court violated his sixth amendment right to confrontation by precluding him from cross-examining police officers “ to challenge their memories and credibility with questions about other similar buy busts they engaged in that day to show that they could have confused or fabricated facts.” We disagree.
“Although the complete exclusion of evidence intended to establish an accused’s defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right.” (People v. Cunningham (2001) 25 Cal.4th 926, 999.) “A trial court’s limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted. [Citations].” (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.)
Here, the trial court permitted defense counsel to question Johnson whether two other arrests were made shortly before and after appellant’s arrest. When Johnson did not remember the specifics of the arrest that took place after appellant’s arrest, the trial court permitted defense counsel to show her the police reports from the other arrests to refresh her recollection. The trial court also permitted defense counsel to ask Johnson how many arrests were made that day and at what time she debriefed Donati regarding the incident that led to appellant’s arrest. And, although defense counsel did not wait for Johnson to respond, the trial court overruled the prosecutor’s objection to defense counsel’s question whether “the other two arrests, the one right before this and the one after this, were very similar in factual detail.” Thus, although the trial court did not allow defense counsel to get into the specific facts of the other arrests that occurred that day—i.e., whether “in numerous of these incidents that the same thing occurred, somebody said, ‘Can you help me out?’ and you gave individuals $5 bills?’ ”—defense counsel was permitted to solicit other responses from which the jury could determine whether Johnson was credible and whether she was “confused or fabricat[ing] facts.” The trial court did not violate appellant’s sixth amendment right to confront and cross-examine witnesses.
Moreover, even if the trial court erred in limiting defense counsel’s cross-examination of Johnson, we conclude that any error was harmless under any standard in light of the strong evidence of guilt and defense counsel’s lengthy argument in closing that Johnson had confused the arrests. Two officers testified they saw appellant remove the cocaine from his mouth and hand it to Johnson. Appellant, who three officers recalled was wearing a black Oakland Raiders jacket that day, was arrested at the scene immediately after the transaction took place, and his subsequent conduct in providing a false identification showed consciousness of guilt. Although Bowden testified he acted alone, he also testified that he led Johnson to appellant and told him Johnson wanted to buy cocaine. Further, the jury understood from defense counsel’s closing argument that the defense theory was that Johnson had confused similar arrests.
(b) Overtime Pay
(1) Background
Respondents filed a motion in limine in which they argued “[t]here should be no mention of officer overtime. E.C. [Evidence Code section] 352.” At the pretrial hearing, Bowden’s attorney stated that whether the officers received overtime “might be relevant to show that because they were getting overtime they had to justify this operation. Thus, they had a personal interest in making arrest in this case; and therefore, they were going to make arrest even if it involved arresting two people for one rock so they could get their statistics up, and that would definitely go to bias because it would show that they have a motive and a reason and an interest in order to make arrest in order to get their arrest statistics up, in order to come in and testify and get overtime for testifying. And in addition in regard to justifying the buy-bust operations. They have a personal outcome in the case, and their salary would be relevant towards that.” The court disagreed, noting that most officers receive overtime for testifying in court and that the issue “doesn’t go to bias or motive as to arrests that were made.” Appellant’s attorney asked whether the court would rule differently “if it was determined that the time conducting the buy-bust operation was on overtime pay as distinguished from their time coming [to court] to testify.” The court replied, “I don’t think so... [T]here is an economic incentive of doing that work if that’s the case, but it doesn’t go to whether or not their testimony in the court would be biased by that incentive.” The court granted the in limine motion.
At trial, when Donati testified he was not working “a regular scheduled shift” at the time he arrested Bowden, Bowden’s attorney asked, “So during this buy-bust operation, you were working overtime?” The prosecutor objected on the grounds it was not relevant and violated the motion in limine ruling. The court sustained the objection. Bowden’s attorney continued, “During this buy-bust operation then, it wasn’t your normal work hours?” Donati replied, “Correct.” During closing argument, appellant’s attorney suggested appellant was arrested “in an attempt to maximize the number of arrests that are processed that day....” Bowden’s attorney argued entrapment, stating Bowden was an addict who was trapped by Johnson’s offer of $20. He also questioned whether it was good “police work” to conduct buy-bust operations in “difficult economic times” to arrest “crumb dealers, ” and whether it was a good use of resources to prosecute “cases like this.”
(2) Discussion
Appellant contends the trial court violated his right to confrontation by precluding cross-examination regarding whether the officers received overtime pay for buy-bust operations to show a motive to fabricate facts. We disagree.
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citations.]’ A trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. [Citation.] ‘ “[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.” [Citations.]’ Regarding constitutional limitations, [the court has] held that ‘ “not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.” ’ ” (People v. Lewis (2001) 26 Cal.4th 334, 374-375.)
The trial court properly excluded evidence regarding overtime under Evidence Code section 352 and did not violate appellant’s right to confrontation in doing so. Appellant asserts that “the only reason there was a trial requiring officer testimony was because two people were arrested for the sale of one rock.” However, in every case in which an arrest occurs, there is the possibility that officer testimony will be required. The fact that officer testimony, which may result in overtime pay, may be required each time an arrest occurs would not have tended to establish the bias of the particular officers who were involved in this and other buy-bust arrests. Rather, questions about overtime pay officers received in this and other unspecified cases would have necessitated undue consumption of time and resulted in a trial within a trial on collateral issues. (See People v. Greenberger (1997) 58 Cal.App.4th 298, 305 [a defendant may not make unlimited inquiry into collateral matters; proffered evidence must have more than slight relevancy to issues presented].) There was no error.
In light of our conclusion there was no error, we reject appellant’s contention that the cumulative effect of the errors warrants reversal.
Disposition
The judgment is affirmed.
We concur: Pollak, J., Siggins, J.