Summary
remanding to trial court for hearing on ability to pay
Summary of this case from People v. PattersonOpinion
A134124
2013-07-30
The PEOPLE, Plaintiff and Respondent, v. Demetrius COLEMAN, Defendant and Appellant.
See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 104. Superior Court of Contra Costa County, No. 05-110237-5, Thomas M. Maddock, Judge. (Contra Costa County Super. Ct. No. 05–110237–5)
See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 104. Superior Court of Contra Costa County, No. 05-110237-5, Thomas M. Maddock, Judge. (Contra Costa County Super. Ct. No. 05–110237–5) Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Eric D. Share and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Respondent.
Jones, P.J.
The People charged appellant Demetrius Coleman with possession of cocaine base for sale (Health & Saf.Code, § 11351.5). Before the preliminary hearing, appellant moved—pursuant to Pitchess
and other authority—for discovery of material in the personnel file of Matthew Stonebreaker, the arresting officer for the City of Richmond (City). Appellant also requested the City police department “run a ‘rap sheet’ on Officer Stonebreaker.” The court conducted an in camera hearing pursuant to Pitchess, reviewed Officer Stonebreaker's personnel file, and ordered the City to disclose information concerning a “complaint of false identifying information.” The court, however, denied appellant's discovery motion to the extent it sought Officer Stonebreaker's birth date and rap sheet.
Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305 (Pitchess ).
At the preliminary hearing, appellant moved to suppress. The magistrate denied the motion and the trial court denied appellant's joint motions to set aside the information and to renew the suppression motion (Pen.Code, §§ 995, 1538.5, subd. (i)). Before trial, appellant moved for an order pursuant to Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (Brady ) and Penal Code section 1054.1 requiring the prosecution to, among other things, run rap sheets on all testifying prosecution witnesses. The court granted the motion in part and denied it in part, explaining it would order the People to comply with Brady but would “not order rap sheets to be run on the officers.”
A jury convicted appellant and the court sentenced him to county jail. The court also ordered appellant to pay a $570 drug program fee pursuant to Health and Safety Code section 11372.7, subdivision (a), and $500 in attorneyfees pursuant to Penal Code section 987.8, subdivision (b).
On appeal, appellant contends the court erred by: (1) denying his motion to suppress; (2) declining to order the prosecution to disclose Officer Stonebreaker's “criminal history;” (3) delegating to the probation department the determination of his ability to pay the drug program fee under Health and Safety Code section 11372.7; and (4) ordering him to pay attorney fees pursuant to Penal Code section 987.8 without determining his ability to pay.
In the unpublished portion of the opinion, we conclude the court properly denied appellant's motion to suppress evidence. We also conclude the court abused its discretion by denying appellant's discovery motion to the extent it sought Officer Stonebreaker's criminal history (if any) and that the error was prejudicial. Accordingly, we conditionally reverse the judgment with directions to the trial court to order the prosecutor to run Officer Stonebreaker's rap sheet as of the date of trial, to conduct an in camera review in accordance with the procedures set forth in Pitchess, and to disclose Officer Stonebreaker's felony convictions or misdemeanor convictions involving moral turpitude, if any. If there are such convictions, the court must evaluate the evidence in light of the entire record and determine whether to grant appellant a new trial. (See People v. Hayes (1992) 3 Cal.App.4th 1238, 1246, 5 Cal.Rptr.2d 105 (Hayes ); see also People v. Hustead (1999) 74 Cal.App.4th 410, 419, 87 Cal.Rptr.2d 875 (Hustead ).) If there are no such convictions, the court will reinstate the original judgment. If the original judgment is reinstated, the attorney fee order must be reversed because there is insufficient evidence of appellant's present ability to pay such fees.
In the published portion of the opinion, we conclude the drug program fee must be reversed if the court reinstates the judgment because the court improperly delegated to the probation department the determination of appellant's ability to pay the drug program fee and because the record does not support an implied finding of his ability to pay. On remand, the trial court must determine appellant's ability to pay the drug program fee under Health and Safety Code section 11372.7 and attorney fees pursuant to Penal Code section 987.8.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged appellant with possession of cocaine base. Before the preliminary hearing, appellant moved to suppress, claiming the charge was based on “evidence derived from an unreasonable search and seizure.”
Initial Motion to Suppress
At the preliminary hearing, Officer Stonebreaker testified he and Officer Danielle Evans were riding their police bicycles westbound on Bissell Avenue in Richmond at 5:00 p.m. on September 24, 2009. The neighborhood where the officers were riding is “a known drug area” where people buy and sell drugs. Both officers were in uniform.
As they rode, they saw a man they later identified as appellant walking on the sidewalk along Bissell Avenue. The officers rode up to appellant, dismounted, and said, “[W]hat's up[?]” Appellant stopped walking. Officer Stonebreaker stood about five feet from appellant and asked his name. Appellant gave his name. Then Officer Stonebreaker asked appellant for his date of birth and appellant complied.
As Officer Evans ran a warrant check, Officer Stonebreaker talked to appellant, explaining that he and Officer Evans were part of a bicycle unit and were meeting “residents in the area.” According to Officer Stonebreaker, appellant “stopped to talk to us tosee what it was. That's all.” While the officers waited for the warrant check results, they did not direct or command appellant to do anything.
On cross-examination, Officer Stonebreaker denied asking appellant if he possessed any drugs and denied asking appellant for permission to search him. Officer Stonebreaker did, however, ask appellant whether he was on probation or parole and whether he “had anything illegal on him.”
About three minutes—“or a short time”—after the encounter began, the officers received a report that appellant “had a warrant out of Solano County.” Officer Stonebreaker handcuffed appellant. While the officers waited for a vehicle to transport appellant to jail, Officer Stonebreaker saw appellant “adjust[ ] his pants a couple of times” and pull out a “clear plastic bagg[ie] containing an off-white chunky substance.” Appellant tossed the baggie behind him; it landed about two or three feet away on the other side of a fence. Officer Stonebreaker retrieved the baggie while Officer Evans put appellant in the patrol car. Officer Evans did not see appellant discard the baggie. When Officer Stonebreaker retrieved the baggie, appellant “became very angry” and “very verbally abusive, and saying whatever we found was not his.” The baggie contained 6.29 grams of cocaine base. Officer Stonebreaker also found $193 in appellant's pockets.
Carlos English, a homeless man who collects cans in a shopping cart and recycles them, testified he had come into contact with Officer Stonebreaker about 10 times and that he is a “nightmare.” According to English, Officer Stonebreaker digs through his shopping cart full of cans, “turn[s] it over [,]” and harasses him “for nothing.” Officer Stonebreaker did not recall meeting English, overturning his shopping cart, or investigating him.
After hearing lengthy argument from counsel, the court denied the motion to suppress, concluding the encounter was consensual.
Renewed Motion to Suppress
Appellant filed joint motions to set aside the information and to renew the suppression motion (Pen.Code, §§ 995, 1538.5, subd. (i)). The trial court denied the motions. It noted the officers “did not issue any commands; they did not block [appellant's] path; they did not display any weapons. The evidence did not reflect a physical touching of [appellant's] person or a tone of voice indicating that it was mandatory for [appellant] to answer Officer Stonebreaker's questions. [¶] The encounter occurred in daylight at a seemingly busy location. The public nature of the encounter is arguably increased because the officers were on bicycles—no patrol cars to shield from public view whatever was going on.” Finally, the court concluded the fact that the officers performed a warrant check, by itself, did not transform the encounter into a detention.
Appellant's Discovery Motions and Requests
Several months before the preliminary hearing, appellant filed a motion for discovery of material in Officer Stonebreaker's personnel file “indicating ... internal and civilian complaints, investigations, or reports in which allegations of corruption, illegal arrests and/or searches, the fabrication of charges and/or evidence, acts of harassment or malicious conduct against citizens, dishonesty and improper tactics ... or false arrest.” The motion also requested the Richmond Police Department “run a ‘rap sheet’ on Officer Stonebreaker.” Appellant brought the motion pursuant to Pitchess, Brady, and Evidence Code sections 1043, 1045, and 1046. Defense counsel's supporting declaration averred appellant did not possess narcotics on the day of the incident and did not “toss[ ] a bag of cocaine from his person.” Counsel stated the City, the Richmond Police Department and/or the Contra Costa County District Attorney's Office possessed the materials and that there was good cause to produce them because Officer Stonebreaker had a “tendency to fabricate incident reports and initiate detentions without reasonable suspicion.”
The City opposed the motion, arguing: (1) appellant had not demonstrated the confidential information regarding Officer Stonebreaker's prior conduct was material to the issues at the preliminary hearing; and (2) it “d[id] not have actual possession of criminal history records” and was not required to search for them.
Following a hearing, the court indicated it would examine Officer Stonebreaker's personnel file for “dishonesty in terms of falsifying information.” The court declined, however, to “order a CNI rap sheet run on the officer” and declined “to give the date of birth of the officer” to defense counsel because it determined the rap sheet and birth date were “something that's reserved for trial.” The court then conducted an in camera hearing and ordered the City to disclose information concerning a “complaint of false identifying information.”
Appellant moved for reconsideration, arguing he was entitled to Pitchess discovery before the preliminary hearing under Galindo v. Superior Court (2010) 50 Cal.4th 1, 112 Cal.Rptr.3d 673, 235 P.3d 1. Appellant suggested the court order the City to disclose Officer Stonebreaker's birth date to the prosecution so the prosecution could run the rap sheet. The City opposed the motion and appellant's request to order the City to disclose the birth date to the prosecution. The court denied the reconsideration motion, concluding the “original Pitchess motion did not have a sufficient basis of materiality or evidence for the court to consider ... releasing the date of birth or rap sheet.” The court continued, “I don't believe there's any legal authority to provide a rap sheet ... particularly without any showing whatsoever that a rap sheet would be relevant to this, as well as the date of birth is not relevant to the Pitchess motion.”
In a pretrial motion, appellant moved for an order—pursuant to Brady and Penal Code section 1054.1—requiring the prosecution to, among other things, run rap sheets on all prosecution witnesses. The court granted the motion “except that I will not order rap sheets to be run on the officers. However, I will require the People to comply with Brady. Somewhat of a distinction.” Defense counsel objected and argued: “I think that the prosecution should be required to run rap sheets on their police witnesses. There's no reason to exempt them. And it's my understanding that the prosecution does run rap sheets on all of their other witnesses as well as defense witnesses and sometimes even jurors.” The court noted the objection and overruled it.
Trial
We summarize the evidence at trial as relevant to appellant's claim regarding the discoverability of Officer Stonebreaker's “criminal history.”
At 5:00 p.m. on September 24, 2009, Officers Stonebreaker and Evans were on bicycle patrol on Bissell Avenue—an area known for narcotics activity—when they saw appellant walking alone. The officers rode up to appellant, and said, “ ‘What's up’ to him.” Officer Stonebreaker told appellant he was part of the bicycle patrol program and that he and Officer Evans were “contacting people in the ... area and introducing ourselves and letting them know what the bicycle program was about.” Officer Stonebreaker asked for appellant's name and date of birth. At that point, the officers were off of their bicycles. Officer Stonebreaker also asked appellant whether he was on probation or parole, and whether he had anything illegal.
Appellant complied. The conversation was “cordial. It was good.”
Officer Stonebreaker testified he asked appellant for permission to pat search but did not pat search appellant until after he arrested him.
As the officers spoke to appellant, they learned he had an outstanding warrant. Officer Stonebreaker put handcuffs on appellant and “double locked” them to make sure the handcuffs were “completely locked.” Officer Stonebreaker searched appellant's pockets, found $193 in small bills, and called for a transport unit. Appellant stood, handcuffed, with a wrought iron fence behind him. Officer Stonebreaker was standing between three and five feet from appellant, on appellant's left side. Officer Evans stood on appellant's other side, facing Officer Stonebreaker. The officers and appellant formed a triangular position.
While appellant stood there, both officers noticed appellant was adjusting his pants by “wiggling left to right to pull his pants up.” While he was doing this, appellant laughed with the officers in a way that seemed “like he was trying to distract” them. Then appellant “took out something ... that was in plastic” with his fingertips and “threw it between the bars of the wrought iron fence.” Officer Stonebreaker saw the object land about three feet away, on the other side of the fence. Officer Evans did not see appellant throw the object; although she sometimes faced appellant as the officers waited for the transport unit to arrive, she was looking at the surrounding area to “make sure that the scene was safe.”
Officer Stonebreaker told Officer Evans that appellant had “dropped” something, pointed out the object to Officer Evans, and went to retrieve it. At that point, the patrol car arrived and Officer Evans placed appellant in the car. Officer Stonebreaker retrieved the object: a clear plastic baggie containing two smaller baggies, one that held 18 individually packaged pieces and one that held small to larger chunks—or about 6.29 grams—of cocaine base.
Appellant testified he was in Richmond on the day of the incident to have his friend repair his car. Appellant had approximately $200 and was going to use it to pay his friend for the repairs.
When appellant arrived at his friend's house, his friend “wasn't ready” so appellant walked to a nearby store to buy a bottle of water. As he walked to the store, he noticed Officers Stonebreaker and Evans had “someone else detained.”
Appellant's friend testified he agreed to repair the car for $200 and that appellant came to his house on the day of the incident. Appellant's friend had a theft conviction.
On his way out of the store, the officers rode up to appellant and asked him what he was doing in the neighborhood. Officer Stonebreaker asked appellant for his name and whether he “ha[d] any guns on [him].” The officers were not “cordial.” They did not explain the bicycle patrol program. Appellant said Officer Stonebreaker could search him for weapons; Officer Stonebreaker then asked appellant a few more questions and started patting him down by “digging” in his pockets. When appellant said, “Why [are] you digging in my pockets,” Officer Stonebreaker told appellant to place his hands behind his back and handcuffed him. He eventually told appellant about the warrant.
The handcuffs were extremely tight and prevented appellant from adjusting his pants, which “were falling down.”
Appellantasked Officer Evans to help him with his pants and she complied. Appellant did not adjust his pants while he was handcuffed. He did not possess cocaine base or throw any cocaine base on the day of the incident. Appellant had been convicted of false imprisonment and possession of a firearm by a felon.
Appellant did not know whether Officer Stonebreaker used one pair of handcuffs or two. A defense investigator and former police officer handcuffed appellant before the jury using a pair of “regulation size” handcuffs. Officer Evans testified that Officer Stonebreaker used two sets of handcuffs because of appellant's size.
Verdict and Sentencing
The jury convicted appellant of possession of cocaine base for sale (Health & Saf.Code, § 11351.5) and the court sentenced him to three years in jail. Among other things, the court ordered appellant to pay a $570 drug program fee (Health & Saf.Code, § 11372.7, subd. (a)) and $500 in attorney fees (Pen.Code, § 987.8, subd. (b)). At the sentencing hearing, the court stated: “[Appellant is] to pay a court security fee of $40, a court conviction assessment of $30, a probation report fee of $176, a criminal justice administration fee of ... $564. [¶] A lab analysis fee ... of $190 and a drug program fee of $570. [¶] All of these other fines and fees, except for the $600 restitution fee, are based on his ability to pay. So probation will do an analysis of his ability to pay and it will be set that way. [¶] Attorney's fees will be assessed in the amount of $500.” Defense counsel did not object to the imposition of these fees.
The probation report does not recommend the imposition of the drug program fee or attorney fees, nor does it address appellant's ability to pay such fees. The report, however, describes appellant's education and employment history. Appellant—who was 39 years old at the sentencing hearing—earned his General Education Diploma (G.E.D.) and took several classes toward earning an administrative justice certificate. He dropped out of the program after losing his driver license. Appellant suffers from numerous health problems and has been diagnosed with schizophrenia. The probation report describes appellant as “employable” and notes he has “electrical skills. He was employed by the Chevron Refinery in Richmond performing fire watch duties from 1993 to 1997.... He was employed by Veraflow in Richmond, which manufactures parts for the Chevron Refinery. Additionally he possesses skills in painting and landscaping.” Before appellant was incarcerated, he was the primary caregiver for his ailing sister. According to the probation report, appellant “reported that he does not have a checking or saving account. He advised that he has no assets.”
DISCUSSION
I.–II.**
See footnote *, ante.
III. If the Original Judgment Is Reinstated, the Health and Safety Code Section 11372.7 Drug Program Fee Must Be Reversed
As stated above, the court imposed a drug program fee of $570 pursuant to Health and Safety Code section 11372.7, subdivision (a). Appellant contends the court erred by delegating the determination of his ability to pay this fee to the probation department.
We ordered the parties to submit supplemental briefing on whether appellant forfeited this challenge by failing to object when the trial court imposed the fee. (See People v. McCullough (2013) 56 Cal.4th 589, 155 Cal.Rptr.3d 365, 298 P.3d 860 (McCullough ).) Having reviewed the supplemental briefing, we conclude McCullough does not bar appellant's claim. In McCullough, our high court held the defendant's failure to object to imposition of a jail booking fee under Government Code section 29550.2 forfeited a sufficiency of the evidence of ability to pay claim on appeal because “a court's imposition of a booking fee is confined to factual determinations.” (Id. at p. 597, 155 Cal.Rptr.3d 365, 298 P.3d 860.) Here, and in contrast to McCullough, appellant does not contend there is insufficient evidence of his ability to pay the drug program fee. He contends his sentence is unauthorized because the court improperly delegated the determination of his ability to pay to the probation department. This presents a question of law we may review in the absence of an objection in the trial court. (Id. at p. 594, 155 Cal.Rptr.3d 365, 298 P.3d 860.)
Subject to certain exceptions, Health and Safety Code section 11372.7, subdivision (a) requires defendants convicted of certain drug offenses to “pay a drug program fee in an amount not to exceed [$150] for each separate offense.” (People v. Corrales (2013) 213 Cal.App.4th 696, 701, 152 Cal.Rptr.3d 667 (Corrales ).) The Health and Safety Code section 11372.7 drug program fee “is mandatory unless the defendant is unable to pay.” (People v. Clark (1992) 7 Cal.App.4th 1041, 1050, 9 Cal.Rptr.2d 726 (Clark ).)
Pursuant to Health and Safety Code section 11372.7, subdivision (b), “[t]he court shall determine whether or not the person who is convicted of a violation of this chapter has the ability to pay a drug program fee. If the court determines that the person has the ability to pay, the court may set the amount to be paid and order the person to pay that sum to the county in a manner that the court believes is reasonable and compatible with the person's financial ability. In its determination of whether a person has the ability to pay, the court shall take into account the amount of any fine imposed upon that person and any amount that person has been ordered to pay in restitution. If the court determines that the person does not have the ability to pay a drug program fee, the person shall not be required to pay a drug program fee.”
The trial court is not required to make an express finding of ability to pay the drug program fee. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1516, 77 Cal.Rptr.2d 492; People v. Staley (1992) 10 Cal.App.4th 782, 785, 12 Cal.Rptr.2d 816.) Several appellate courts have presumed the trial court determined the defendant had the ability to pay the drug program fee when the record “does not suggest otherwise.” (Clark, supra, 7 Cal.App.4th at p. 1050, 9 Cal.Rptr.2d 726 [“[s]ince the record does not suggest otherwise, we presume the court found [the defendant] had the ability to pay”]; Corrales, supra, 213 Cal.App.4th at p. 702, 152 Cal.Rptr.3d 667 [“[w]e presume the trial court determined [the] defendant was able to pay” the drug program fee].)
Here, we cannot presume the court found appellant had the ability to pay the drug program fee because the court explicitly stated the probation department would “do an analysis of [appellant's] ability to pay, and it will be set that way.” By delegating the ability to pay finding to the probation department, the court failed to comply with Health and Safety Code section 11372.7, subdivision (b), which requires the court—not the probation department—to “determine whether or not the person who is convicted of a violation of this chapter has the ability to pay a drug program fee.” We cannot, as the People urge, presume “the trial court will comply with Health and Safety Code section 11372.[7]” at some point in the future.
Neither does the record support an implied finding of ability to pay. ( Corrales, supra, 213 Cal.App.4th at p. 702, 152 Cal.Rptr.3d 667.) In Corrales, the trial court imposed the drug program fee but “did not orally impose any penalties or the surcharge on the ... drug program fee.” (Id. at p. 701, 152 Cal.Rptr.3d 667.) The Second District Court of Appeal presumed the trial court had concluded the defendant had an ability to pay $150, but explained, “the total amount payable”—with penalties or the surcharge—was “not $150, but $540. The probation report contains no evidence of defendant's assets. The probation report states [the] defendant is an unemployed ex-convict. Thus, there is no substantial evidence [the] defendant has the ability to pay the drug program fee after it has been enhanced by the penalties and surcharge.” (Id. at p. 702, 152 Cal.Rptr.3d 667.) The Corrales court reversed the drug program fee and remanded for the trial court to determine the defendant's ability to pay “in light of all of [the] defendant's financial circumstances.” (Ibid.)
Here, as in Corrales, there is insufficient evidence to support an implied finding appellant has the ability to pay the drug program fee. The probation report does not recommend appellant pay the drug program fee, nor does it analyze his ability to pay such a fee. As described above, the probation report states appellant has no assets, is unemployed, and suffers from numerous health problems, including schizophrenia. Although appellant has a G.E.D. and possesses electrical, painting, and landscaping skills, he has no employment prospects and has physical limitations.
We conclude the court erred by delegating to the probation department the analysis of appellant's ability to pay the drug program fee. We also conclude the record does not support an implied finding of appellant's ability to pay the drug program fee. If the court reinstates the judgment in accordance with our opinion, it must “conduct a hearing concerning [appellant's] ability to pay the drug program fee in light of his total financial obligations.” (Corrales, supra, 213 Cal.App.4th at p. 702, 152 Cal.Rptr.3d 667.)
IV. If the Original Judgment Is Reinstated, the Penal Code Section 987.8 Attorney Fees Must Be Reversed
See footnote *, ante.
DISPOSITION
The judgment is conditionally reversed with directions to the trial court to: (1) order the prosecutor to run Officer Stonebreaker's rap sheet as of the date of trial; (2) conduct an in camera review in accordance with the procedures set forth in Pitchess ; and (3) disclose Officer Stonebreaker's felony convictions or misdemeanor convictions involving moral turpitude, if any. If there are such convictions, the court must evaluate the evidence in light of the entire record and determine whether to grant appellant a new trial. (See Hayes, supra, 3 Cal.App.4th at p. 1246, 5 Cal.Rptr.2d 105; Hustead, supra, 74 Cal.App.4th at p. 419, 87 Cal.Rptr.2d 875.) If there are no such convictions, the court will reinstate the original judgment.
If the original judgment is reinstated, the Health and Safety Code section 11372.7 drug program fee is reversed. On remand, the trial court is to determine appellant's ability to pay the drug program fee together with the other fines, fees, and assessment in light of all of appellant's financial circumstances. If appellant has the ability to pay, the drug program fee is to be reinstated. If the original judgment is reinstated, the Penal Code section 987.8 attorney fee order is also reversed. On remand, the court must determine appellant's ability to pay attorney fees in accordancewith Penal Code section 987.8. If appellant has the ability to pay the attorney fees, the order imposing attorney fees will be reinstated.
In all other respects, the judgment is affirmed. Simons, J. Needham, J.