Opinion
A128747
11-18-2011
THE PEOPLE, Plaintiff and Respondent, v. RAMON ANTONIO CHAVEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. VCR199967)
A jury convicted appellant Ramon Antonio Chavez of transportation of methamphetamine and possession of methamphetamine for sale. (Health & Saf. Code,§§ 11378, 11379.) He was granted probation, conditioned on serving a one-year jail term. Chavez appeals, challenging (1) the trial court's denial of his motion to discover police personnel records and (2) its failure to give a unanimity instruction. We affirm the judgment.
All statutory references are to the Health and Safety Code unless otherwise indicated.
I. FACTS
A. Arrest
For six weeks in August and September 2008, Vallejo Police Officer William Badour conducted a methamphetamine trafficking investigation that focused on a Devonshire Street residence. Officer Badour had seen appellant Ramon Antonio Chavez there on numerous occasions and the Department of Motor Vehicles had confirmed that Chavez reported the Devonshire Street address as his own. The officer had also seen Chavez drive a 1993 Acura that was sometimes parked in front of the house.
On September 11, 2008, Officer Badour prepared to execute a search warrant at the house. First, he waited in an unmarked vehicle until Chavez left. Seeing him drive off alone in the Acura, other officers in a marked car approached Chavez's car and signaled to him to pull over. Chavez did not comply, but sped up and away. A second marked car joined in the pursuit and together, the two marked cars forced the Acura off the road. The Acura was stopped half a mile to a mile beyond where police had first signaled for Chavez to stop. During the chase, it appeared to Officer Badour that Chavez twice dipped his shoulder toward the floorboard of the Acura.
Officer Badour was concerned that Chavez might be armed with a weapon. Within seconds of the car stop, the police deployed a device—a handheld object that, when thrown, created a loud noise and much smoke—to distract Chavez. He was ordered out of the car, but he did not get out. Instead, Chavez yelled at the police and would not put his hands up. The police could not see his hands. Chavez was bent over with his hands in his lap, holding his hands and arms rigid. The officers ordered him to release his hands; he did not, still screaming at police. The driver's side window was down, so Detective Todd Tribble tried to grab Chavez's hand through it. Officer Badour tried to grab the other hand from the passenger side, but was unable to gain control. After about 30 seconds, Detective Tribble pulled Chavez out the passenger window. Chavez continued to struggle for another 30 seconds. Police forced him to the street on his stomach, with his hands in his waistband area and his elbows still tight against his body. Police were then able to grab his arms and handcuff him. Officer Badour later estimated that Chavez was told to show his hands at least 15 times.
At trial, Chavez testified that he did comply with orders to show his hands.
Chavez was arrested and booked at jail. No drugs or cash were found on his person. Booking photographs were taken showing that his face was swollen. He did not seek medical attention in jail. When the Acura was searched, a small baggie containing 2.96 grams of methamphetamine was found on the driver's side floorboard between the seat and the door. It would have been within Chavez's reach when he was in the car.
The car was registered to Monica Querol, who appears to be Chavez's mother.
After Chavez's arrest, the police returned to Devonshire Street and searched the house. It was protected by two security cameras; two bedrooms inside contained monitors showing the camera feeds. An older woman—the mother of Chavez's stepfather—owned the house and lived in the master bedroom.
Other officers had detained the occupants of the house—three women, a man and a child—in a patio. The property was found to contain two living areas outside the house itself. One contained methamphetamine, a digital scale, baggies and indicia for Chavez's stepfather and mother. His mother was found to have a methamphetamine pipe in her possession. Both were arrested. He was found with $222 on his person. The other housed a second woman named Hernandez or Jiminez.
Judging by the clothing and indicia found inside a second bedroom, that room belonged to Chavez. The police found Chavez's driver's license and several bills naming him in this room. Near the driver's license, police also found a digital scale with a small residue of what appeared to be methamphetamine on it. A second nonoperational scale was also found in a dresser drawer. In the closet, a bag with 10.37 grams of a substance containing methamphetamine was found. The police also recovered a police scanner tuned to a Vallejo police frequency and a jug of MSM—a cutting agent that, when mixed with methamphetamine, helps to crystallize it—in this bedroom. No evidence of methamphetamine use—smoking pipes, burned spoons or injection needles—was found in that bedroom. B. Pretrial Matters
MSM is an acronym for methylsulfonylmethane.
In September 2008, Chavez was charged with transportation of methamphetamine, possession of methamphetamine for sale and evading a police officer. (§§ 11378, 11379, subd. (a); Veh. Code, § 2800.1.) In December 2008, an information alleged that Chavez had transported methamphetamine and possessed methamphetamine for sale. The information did not allege any evading police or resisting arrest charge. (§§ 11378, 11379, subd. (a).) In January 2009, Chavez entered a plea of not guilty to the drug charges. In November 2009, he moved to dismiss the transportation charge as lacking probable cause, without success. (Pen. Code, § 995.)
The record on appeal does not contain any minute order denying this motion, but the count was tried.
In February 2010, Chavez moved for discovery of records of any complaints that had been filed against three of the Vallejo police officers who participated in his arrest. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536-537 (Pitchess).) The People opposed this motion. The trial court denied the motion, finding that it sought nothing relevant to the drug charges that Chavez faced. C. Trial
At trial, Officer Badour testified for the prosecution, identifying Chavez as the man he arrested. He told the jury that he did not believe that anyone was injured in the struggle leading to Chavez's arrest.
An expert witness testified that 2.96 grams of methamphetamine was found in the Acura. The substance found in the closet of the Devonshire residence contained methamphetamine and weighed 10.37 grams.
The sample was not tested for the presence of MSM.
An officer who participated in the house search opined that the methamphetamine found there was possessed for sale. He mentioned the amount of methamphetamine— cited as 13.3 grams—and other factors such as the presence of security cameras, the fact that one feed from the cameras led to Chavez's bedroom, the digital scale, the apparent residue of methamphetamine on it, the police scanner, the MSM cutting agent and the lack of drug use paraphernalia as factors supporting his opinion. As a normal dose was a tenth of a gram, the expert witness estimated that the 13.3 grams would produce more than 130 doses of methamphetamine. He opined that 14 grams of cocaine had a wholesale value of $500 to $600. If it was cut into one-gram quantities, each would sell for $70 to $100. He also offered an opinion that the methamphetamine found in the Acura was possessed for sale, based on the quantity and the lack of user paraphernalia found with it.
Chavez testified in his own defense. He told the jury that he had once lived at the Devonshire Street house, but that he was not living there in September 2008. He had left some of his possessions at the house when he moved out earlier that year. He testified that his stepfather had installed the security cameras and monitor for the owner of the house.
Chavez testified that on September 11, 2008, his mother asked him to run an errand for her. She gave him the keys to her car and he left to go to the store. He heard sirens and, fearing that he might be roughed up by police, he drove to a more populated area before pulling over. He told the jury that he put his hands up. After someone hit him in the face, he screamed for help. The police kept on hitting him and he kept screaming until they pulled him out the window of the car and slammed his face onto the ground, chipping his tooth. After that, Chavez was quiet. His face was swollen on both sides.
The jury saw booking photographs of Chavez taken the same day as his arrest. He also testified that he did not ask police for medical attention when he was in jail, but when he was released on bail, he went to a hospital to get medical attention for his injuries.
Chavez told the jury that he did not know that his mother's car or her living area at the Devonshire Street house contained drugs. He testified that his driver's license was in his pocket when he was arrested, suggesting that police planted it in the bedroom of the Devonshire Street house.
On rebuttal, Officer Badour testified again about the struggle that took place at the time of Chavez's arrest. Chavez got hit in the face once and his head got slammed to the ground because police were concerned that he had been armed with a gun. He was screaming, he had been observed reaching under the seat and he refused to put his hands up.
In April 2010, the jury convicted Chavez of the transportation and possession for sale charges. (§§ 11378, 11379.) In May 2010, imposition of sentence was suspended.He was placed on probation for three years, conditioned on him serving a year in county jail. After an issue arose about the calculation of credits awarded at the time of sentencing, in September 2010, the trial court amended the sentence to clarify its calculation.
At sentencing, the trial court observed that neither it nor the jury found Chavez's testimony credible. After he was convicted, Chavez admitted that he was both using and selling methamphetamine.
At the time of sentencing, other criminal matters were pending involving a 2007 incident of resisting arrest and 2009 misdemeanor domestic violence and willful injury to a child charges. He was also facing revocation of probation. (See Pen. Code, §§ 148, 273a, subd. (b), 273.5, subd. (a), 415.) He pled no contest to a charge of misdemeanor battery on a cohabitant and the other charges were dismissed. Chavez was sentenced to an additional 60 days in jail, to be served consecutive to his one-year jail term. He was also required to enroll in a battery treatment program on his release from custody. (Id., § 243, subd. (e)(1).)
II. DISCOVERY MOTION
First, Chavez contends that the trial court erred by summarily denying his motion to discover police personnel records. He asks us to remand this case for an in camera trial court review of those files. In certain circumstances, a criminal defendant is entitled to discover personnel records of a peace officer who is accused of misconduct against the defendant. (People v. Gaines (2009) 46 Cal.4th 172, 179; People v. Galan (2009) 178 Cal.App.4th 6, 11; see Evid. Code, § 1043, subd. (b).) To be entitled to access to these records, the defendant must demonstrate that the evidence is relevant to the subject matter of the pending litigation. (People v. Gaines, supra, 46 Cal.4th at p. 179; People v. Galan, supra, 178 Cal.App.4th at p. 11; see Evid. Code, §§ 1043, subd. (b)(3), 1045, subd. (a).) The request must be made by written motion, supported by an affidavit showing good cause for the disclosure sought and setting forth its materiality to the pending litigation. (Evid. Code, § 1043, subds. (a), (b)(3); People v. Galan, supra, 178 Cal.App.4th at p. 12.) If good cause is found, the defendant is entitled to have the trial court review the records in camera to determine what information—if any—should be disclosed. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1027; People v. Sanderson (2010) 181 Cal.App.4th 1334, 1340.)
Whether the defendant has made the required showing of good cause to warrant an in camera review is evaluated based on a relaxed standard, to ensure that all potentially relevant documents will be reviewed by the trial court. (People v. Gaines, supra, 46 Cal.4th at p. 179; People v. Galan, supra, 178 Cal.App.4th at p. 11.) On appeal from a trial court's order denying a motion to discover these police records, we review that decision for an abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 991-992; People v. Galan, supra, 178 Cal.App.4th at p. 12.) An abuse of discretion occurs when the trial court's ruling falls outside the bounds of reason. (People v. Galan, supra, at p. 12.)
Much of Chavez's claim of error turns on whether the documents sought in the discovery motion were relevant to the charges that were to be tried. Initially, Chavez was charged with the two drug counts as well as a count of evading a police officer. (Veh. Code, § 2800.1.) When the information was filed, it alleged only the two drug charges. (§§ 11378, 11379, subd. (a).) The declaration supporting Chavez's motion noted that a misdemeanor count of obstructing a police officer had been charged in the complaint.It argued that discrepancies about the differing versions of the facts surrounding his detention and arrest raised an implication of excessive force and/or writing a false police report.
The declaration stated that this charge was a violation of Penal Code section 148, although the complaint actually charged a Vehicle Code section 2800.1 violation of eluding a pursuing police officer by attempting to flee in a motor vehicle. We treat the declaration as if it cited the correct offense.
The People opposed the motion on several grounds, including that the evidence sought was not relevant to the pending litigation. When the motion was heard, Chavez orally cited a fact that was not alleged in the declaration—his denial that police had found his driver's license in the house—as evidence tending to undermine the credibility of law enforcement testimony to the contrary. The trial court denied the motion for lack of good cause, concluding that any use of excessive force or false allegations were unrelated to the drug charges that were to be tried.
To the extent that the motion sought evidence surrounding Chavez's vehicle stop and the subsequent encounter with police, the trial court properly found that the disclosure sought was irrelevant to the pending drug charges. To prevail on a Pitchess motion, a defendant must demonstrate a logical link between the defense proposed and the pending charges, and must describe how the discovery sought to be obtained would support that defense. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1024; People v. Sanderson, supra, 181 Cal.App.4th at p. 1340.) No facts related to the circumstances leading to Chavez's arrest could have logically supported any defense to the charges of transportation and possession for sale.
Chavez also urges us to find that the motion should have been granted to seek evidence undermining the credibility of Officer Badour about where he found the driver's license. A Pitchess motion may be used to obtain evidence that may be used to impeach a witness. (People v. Hustead (1999) 74 Cal.App.4th 410, 417.) Assuming arguendo that the trial court erred in denying this aspect of the Pitchess motion, Chavez has not established any prejudice resulting from the denial of this aspect of his motion for discovery. (See People v. Hustead, supra, 74 Cal.App.4th at p. 418.) His driver's license was admitted into evidence to show his possession of the bedroom in which methamphetamine and other evidence of possession for sale was found. The prosecution offered evidence that several indicia naming Chavez were found in that bedroom. The evidence of his driver's license was cumulative of other unchallenged evidence. Even if the driver's license had been excluded from evidence, the other indicia established the prosecution's theory that the room belonged to Chavez. Under these circumstances, we would find no prejudice resulting from any assumed trial court's failure to find good cause to conduct an in camera review of Officer Badour's personnel records.
III. UNANIMITY INSTRUCTION
Chavez also contends that the trial court violated his due process rights when it failed to give a unanimity instruction. He urges us to reverse his conviction of possession of methamphetamine for sale on this basis. A unanimity instruction must be given if the prosecution offers evidence of multiple acts to prove a single count. (People v. Russo (2001) 25 Cal.4th 1124, 1135; see CALCRIM No. 3500.) If the prosecution does not elect which of several acts forms the basis of the charged crime, the trial court must instruct the jury to agree on the underlying act. (People v. Russo, supra, 25 Cal.4th at p. 1132.)
CALCRIM No. 3500 instructs a jury that, when a defendant is charged with a specific offense and the prosecution has "presented evidence of more than one act to prove that the defendant committed" it, the jury "must not find the defendant guilty unless [all jurors] agree that the [prosecution has] proved that the defendant committed at least one of these acts and [all jurors] agree on which act" the defendant committed.
Chavez did not request this jury instruction. However, in an appropriate case, it must be given sua sponte. (People v. Mayer (2003) 108 Cal.App.4th 403, 418.)
Chavez asserts that the prosecution did not elect to rely alone on the 10 grams of methamphetamine found in the house to support its possession for sale count. He cites evidence that the prosecution elicited during trial and closing argument quantifying the amount of methamphetamine as 13.3 grams—the total amount found in both locations— and an opinion that the amount of methamphetamine found in the Acura—nearly three grams—was consistent with possession for sale. He reasons that this evidence supports his assertion that the jurors may not have agreed on which possession—that found in the Acura or that found in the house—formed the basis of his possession for sale conviction.
Our review of the entire record satisfies us that an election was made. During closing argument, the prosecutor explained that Chavez transported three grams of methamphetamine in the Acura and possessed 10 grams at the Devonshire Street house.She specifically argued that 2.9 grams—the amount found in the car—was a usable amount of methamphetamine and that 10.37 grams—the amount found at the house—was also a saleable amount. When this argument is viewed in the context of the elements of each charged offense, we are satisfied that the prosecution elected to rely on the 10.37 grams found at the house alone as evidence of Chavez's possession for sale. Thus, no unanimity instruction was required.
Chavez asserts that there was no trial testimony establishing these weights to support this argument. Our reading of the record satisfies us that evidence was before the jury allowing this inference to be made.
In light of this conclusion, we need not determine whether any error might have been harmless, or what standard of prejudice should apply to such a prejudicial error analysis.
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The judgment is affirmed.
Reardon, J.
We concur:
Ruvolo, P.J.
Sepulveda, J.