Opinion
D058296 Super. Ct. No. JCF24337
02-02-2012
THE PEOPLE, Plaintiff and Respondent, v. RICHARD M. DANG, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Imperial County, Christopher W. Yeager and Jeffrey B. Jones, Judges. Affirmed.
Richard M. Dang appeals a judgment following his jury conviction of possession of a controlled substance in a state prison (Pen. Code, § 4573.6). On appeal, he contends the trial court erred by denying his Pitchess motion for discovery of confidential personnel records of certain correctional officers involved in the matter.
All statutory references are to the Penal Code unless otherwise specified.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
FACTUAL AND PROCEDURAL BACKGROUND
On April 8, 2008, Dang was an inmate at Centinela State Prison serving a prison term for second degree murder. Nicholas Rodriguez, a correctional supervisor, observed Dang and another inmate, Mejorado, acting nervous and evasive while standing near the handball court in the prison yard. They were looking at Rodriguez. Rodriguez called Correctional Officers Herzog and Acosta to his location. They approached Dang and Mejorado and escorted them to a position in front of Building A-3. Rodriguez then went inside the building to secure an area in which an unclothed body search of Dang and Mejorado could be conducted. Without handcuffs, Dang and Mejorado stood outside the building with Officers Herzog and Acosta. There were no other officers or inmates within 40 feet of Dang and Mejorado. While Rodriguez was inside the building, Herzog saw Dang take the handkerchief or bandanna off his head, flick it, and place it on his right shoulder. Herzog saw an object flying through the air and fall on the ground three feet behind Dang. The object appeared to be a bindle (i.e., a package of drugs or "dope") that had come from Dang's bandanna. The bindle appeared to be clear cellophane, slightly larger than a penny, and was dark in color. Subsequent testing showed the bindle contained 0.43 grams of heroin. Herzog looked away for a few seconds when he heard a yard alarm activated, requiring all inmates (apparently other than Dang and Mejorado) to sit or lie down. Looking back at Dang, Herzog saw him chewing or "mauling" on something. Hearing the alarm, Rodriguez came outside and saw Dang chewing on something, trying to swallow and successfully swallowing it.
Dang was then locked in a solitary cell to allow correctional officers to watch for contraband. Two days later, Correctional Officer Juan Vizcarra examined one of Dang's bowel movements and found the tip of a latex glove that was tied into a bindle. That bindle contained 0.2 grams of methamphetamine and 0.1 grams of marijuana.
Correctional Officer Samuel Sandoval conducted a search of Dang's prison cell and found latex gloves with missing fingertips that inmates typically use to conceal drugs. He also found a pair of jeans with a slit in its zipper containing a hidden inmate- manufactured syringe used to inject heroin. Dang's cellmate denied ownership of the jeans.
An indictment charged Dang with one count of possession of a controlled substance in a prison facility (§ 4573.6) and further alleged he had a prior serious felony conviction within the meaning of section 667, subdivision (a)(1). Before trial, Dang filed a Pitchess motion for discovery of the confidential personnel records of Rodriguez, Acosta, Herzog, Vizcarra, and Correctional Officers Holt and Mortimer. The trial court found Dang had not provided a sufficient factual scenario to establish good cause for disclosure of the requested documents, concluded it was not required to conduct an in camera review of the requested documents, and denied the motion without prejudice.
Following a jury trial, Dang was convicted of possession of a controlled substance while in prison. The trial court found true the allegation he had a prior serious felony conviction. The court sentenced Dang to a six-year prison term, to be served consecutively to his existing indeterminate term. Dang timely filed a notice of appeal.
DISCUSSION
I
Forfeiture of Appellate Contention
The People assert Dang forfeited his Pitchess motion contention on appeal because after the trial court denied his motion without prejudice, he did not file another Pitchess motion with greater factual specificity.
At the hearing on Dang's Pitchess motion, the trial court announced its tentative ruling that it would deny the motion because Dang did not propose a plausible factual scenario requiring an examination or production of the requested documents. Dang's counsel requested that, if the court found his showing to be insufficient, it deny his motion without prejudice so he could correct the supporting declaration's errors and refile the motion. After hearing arguments of counsel, the court confirmed its tentative ruling and denied the motion without prejudice. However, Dang did not thereafter refile any new Pitchess motion or any new or corrected supporting declaration.
The People argue Dang has forfeited his contention that the trial court erred by denying his Pitchess motion because he did not refile a new Pitchess motion or any new or corrected supporting declaration after the trial court at his request denied his motion without prejudice. Because Dang's motion was denied without prejudice, the People argue he had an opportunity to cure the deficiency the court found in his counsel's supporting declaration. However, in so arguing, the People have not cited any case holding an order denying a Pitchess motion without prejudice cannot be challenged on appeal unless the appellant has first refiled the motion with a new or corrected supporting declaration. The two cases cited by the People are procedurally and factually inapposite and do not persuade us that a forfeiture rule should be adopted and applied in the circumstances of this case. (See People v. Mills (2010) 48 Cal.4th 158; People v. Zambrano (2007) 41 Cal.4th 1082, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) We conclude Dang has not forfeited his contention on appeal.
II
Pitchess Motions Generally
"A criminal defendant has a limited right to discovery of a peace officer's personnel records. ([Pitchess], supra, 11 Cal.3d at pp. 536-539.) Peace officer personnel records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045. (Pen. Code, § 832.7; [citation].) The discovery procedure has two steps. First, the defendant must file a motion seeking such records. The motion in pertinent part must state what records are sought and provide affidavits 'showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation.' (Evid. Code, § 1043, subd. (b)(3).) The required affidavit may be based on information and belief. [Citation.] If the foundational showing is satisfied, the trial court reviews the records in camera to determine whether any are relevant to the litigation. (Evid. Code, § 1045, subd. (b).)
"A showing of 'good cause' exists if the defendant demonstrates both (1) a 'specific factual scenario' that establishes a 'plausible factual foundation' for the allegations of officer misconduct [citations], and (2) that the misconduct would (if credited) be material to the defense (Warrick v. Superior Court (2005) 35 Cal.4th 1011 . . . [(Warrick)]). Warrick clarified that the materiality element requires the defendant to establish a logical link between the pending charge and the proposed defense, and to articulate how the requested discovery will support the proffered defense. [Citation.] Accordingly, defense counsel's supporting declaration must propose a defense and articulate how the requested discovery may be admissible as direct or impeachment evidence in support of the proposed defense, or how the requested discovery may lead to such evidence. [Citation.] Thus, a defendant meets the materiality element by showing (1) a logical connection between the charges and the proposed defense; (2) the requested discovery is factually specific and tailored to support the claim of officer misconduct; (3) the requested discovery supports the proposed defense or is likely to lead to information that will do so; and (4) the requested discovery is potentially admissible at trial." (Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 318-319.)
In presenting a specific, plausible factual scenario of officer misconduct, a defendant need not present a credible or believable factual account of, or a motive for, police misconduct. (Warrick, supra, 35 Cal.4th at p. 1026.) Rather, that presentation requires a scenario that might or could have occurred. (Ibid.) "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." (Ibid.) "That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report." (Id. at pp. 1024-1025, italics added.) A trial court's ruling on a Pitchess motion is generally reviewable for abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; Pitchess, supra, 11 Cal.3d at p. 535; Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1049.)
III
Order Denying Dang's Pitchess Motion
Dang contends the trial court erred by denying his Pitchess motion. He asserts he presented a sufficient specific factual scenario to establish a plausible factual foundation for his allegations of peace officer misconduct.
A
In his Pitchess motion, Dang sought discovery of the personnel records of the six correctional officers named above, arguing those records were material to his defense. In support of his motion, Dang submitted the declaration of his counsel, Henry B. Yorgey, that stated in pertinent part:
"7. The asserted defense in this case will likely be that [Dang] is being falsely accused of possession [of] a controlled substance in a state prison. Related to that defense, two substantial issues will likely arise in the trial of this case. The first issue is whether correctional officers committed acts of dishonesty by planting evidence and using that evidence to falsely accuse [Dang] of the crime charged. The second issue is whether correctional officers falsified reports regarding the conduct and actions of [Dang]. These issues arise in connection with the factual scenario explained below. . . . The factual scenario at issue is as follows:Dang's counsel further declared: "A substantial issue in the trial of this case will be the credibility of the above-named officers. Evidence that an officer has a history of falsifying reports, giving false testimony or planting evidence would be relevant and admissible to establish the officer's character for honesty and truthfulness. [Citation.]" He further declared: "A substantial issue in the trial of this case will be whether correctional officers planted evidence against [Dang]."
"I am informed and believe that: (a) the incident giving rise to this case did not occur as the officers stated in their reports; (b) in the morning of April 8, 2008, [Dang] was an inmate at Centinela State Prison who had been released with other inmates to the yard of the prison's Facility A; (c) [Dang] did not [possess] any kind of controlled substance on this day; (d) [Dang] and another inmate, [Mejorado], were detained by [Rodriguez, Acosta and Herzog] on the yard; (e) [Mejorado] also never possessed any kind of controlled
substance on this day; (f) [Dang] never dropped a controlled substance from his handkerchief while he was detained on the yard; (g) [Dang] never chewed or swallowed anything while he was put on 'contraband watch' and at some point [Vizcarra] was the officer on duty for the watch; (i) [Dang] never had any controlled substances in his digestive system and there was never any controlled substances in his bowel movement; [¶] (j) [Rodriguez] lied in his report when he stated that he saw [Dang] chewing and swallowing something [citation]; (k) [Herzog] lied in his report when he stated that he saw something fall to the ground after [Dang] waved his handkerchief [citation]; (l) [Acosta] lied in his report when he stated that he saw a clear plastic bindle on the ground behind [Dang] [citation]; (m) [Vizcarra] lied in his report when he stated that he found a bindle in [Dang's] bowel movement [citation]; [¶] (n) [Rodriguez, Herzog, Acosta, Vizcarra, Holt and Mortimer] agreed to plant the evidence in this case; (o) [Rodriguez, Herzog, Acosta, Vizcarra, Holt and Mortimer] agreed to manufacture the story that [Dang] dropped a bindle of heroin on the prison's Facility A yard; (p) [Rodriguez, Herzog, Acosta, Vizcarra, Holt and Mortimer] agreed to manufacture the story that [Dang] had controlled substances in his bowel movement . . . ."
Copies of the written incident reports filed by the six named officers were attached to his counsel's declaration. Herzog's report stated: "I ordered both inmates [Dang and Mejorado] to move to the front of Building A3. Inmate Dang waved a handkerchief in the air with his right hand. This movement caught my attention. I saw something falling to the ground and land behind him, approximately 3 feet, as he placed the handkerchief on his right shoulder. I informed Officer Acosta of the object[;] he placed his foot over the object but did not step on it. A personal alarm was activated in the medical clinic and both inmates were ordered to get down. I looked toward the clinic[;] as I looked back to inmate Dang, he was chewing something. . . ."
At the beginning of the hearing on Dang's Pitchess motion, the trial court stated:
"I will say that my tentative [ruling] is that the facts as stated in the declaration appear to me to be insufficient. [The stated facts] don't propose any plausible factual scenario. [The declaration] simply states that the officers lied. And it raises, in the Court's view, a concern that if this were the standard, then, in effect, any not guilty plea would open up the officers' files because it's simply a statement that the defendant is not agreeing that the charges are correct. And that's basically the conduct that [Dang] refers to." (Italics added.)Responding to the argument of Dang's counsel that a plausible factual scenario was presented, the court stated:
"[M]y perspective is that there is a threshold, and it's like a lot of things in the law, you can't just define it as being the 50-yard line or whatever. It is something higher than simply saying 'I'm declaring not guilty and I'm telling you that you have to prove it.'
"Here, in the declaration, all I am reading is that Sergeant Rodriguez lied in his report. Officer Herzog lied in his report. Officer Acosta lied in his report. These officers were all incorrect. It really doesn't say what Mr. Dang was doing.
"Now, you are making the point that it's kind of difficult in that situation to describe an alternative course of action that Mr. Dang was engaged in because he wasn't really doing very much — [¶] . . . [¶] . . . during that time. He may have been proned [sic] out or some other situation, but there is really no scenario at all. [You] are simply saying that that didn't happen. And, to me, that is just another way of saying 'not guilty.' It seems to me that the threshold has to be somewhere higher than that, and it hasn't been met in this case." (Italics added.)
The People argued Dang's case was analogous to People v. Thompson (2006) 141 Cal.App.4th 1312, 1316-1318 (Thompson), which concluded the trial court in that case reasonably found the defendant did not present a specific, plausible factual scenario (e.g., an alternative version of the facts) considering the circumstances. The trial court then denied Dang's motion without prejudice, stating: "I am finding that, as it stands, the declaration is insufficient to establish a plausible factual scenario and doesn't meet that threshold and, therefore, there is an insufficient nexus to proceed to an in camera [review of documents] . . . ."
B
Based on our review of the record in this case, we conclude the trial court reasonably, and correctly, concluded Dang did not present a specific factual scenario of officer misconduct plausible in the circumstances of this case. Contrary to Dang's assertion, he did not make a good cause showing by merely denying the facts alleged in the officers' reports. Because those reports described the actions of Dang and the correctional officers involved during three crucial alleged events, it was incumbent on Dang to present a specific factual scenario different from the scenario presented in the officers' reports. For instance, rather than merely denying Herzog's report that he saw something (i.e., a bindle) fall to the ground after Dang waved his handkerchief in the air, Dang should have presented an alternative factual scenario regarding what his specific actions were instead (e.g., he never removed his handkerchief from his head, he removed it but did not wave or fling it in the air but rather moved it in some other manner or direction, etc.). Likewise, rather than merely denying Rodriguez's report that he saw Dang chewing and swallowing something, Dang should have presented an alternative factual scenario regarding his specific actions at that time (e.g., he never made any chewing or other motion with his jaw, he made a chewing motion but no swallowing motion, he made chewing and swallowing motions not for purposes of drug consumption but for other purposes such as to clear his throat of saliva or other specific, non-drug matter). Because Dang's Pitchess motion was, as the trial court concluded, simply a denial of the charge against him and the officers' reports when in the circumstances of this case he could, and should, have instead presented a specific, plausible, alternative factual scenario of officer misconduct, he did not make the good cause showing required for an in camera review of documents. (Warrick, supra, 35 Cal.4th at pp. 1023-1026; Giovanni B. v. Superior Court, supra, 152 Cal.App.4th at pp. 318-319.) Dang did not present a specific factual scenario of officer misconduct that might or could have occurred and was both internally consistent with and supportive of his defense. (Warrick, at p. 1026.)
Although we generally apply the abuse of discretion standard of review on appeal from an order denying a Pitchess motion (Alford v. Superior Court, supra, 29 Cal.4th at p. 1039), we are in as good a position as the trial court to review Dang's Pitchess motion papers and supporting declaration and determine whether he made a sufficient good cause showing to require an in camera review of documents.
The circumstances in this case are not of the type referred to in Warrick for which a mere denial of the officers' reports may suffice. (Warrick, supra, 35 Cal.4th at pp. 1024-1025.) By way of example, Warrick referred to People v. Hustead (1999) 74 Cal.App.4th 410 as a case in which mere denial of the police report's account apparently was sufficient. (Warrick, at p. 1025.) In Hustead, in defending a charge of felony evasion of arrest after a high-speed automobile chase, the defendant presented a declaration denying he had driven in the manner or along the route described in the police report. (Warrick, at p. 1025; People v. Hustead, at p. 417.) In Hustead, the defendant's counsel presented a declaration asserting the defendant "did not drive in the manner described by the report and that his driving route was different from that found in the report." (Hustead, at p. 417.) Hustead concluded those allegations were sufficient to establish a plausible factual foundation that the officer made false accusations in his report. (Ibid.) Hustead presumably concluded the defendant could not, and therefore did not need to, present a specific factual scenario of officer misconduct as an alternative to the scenario presented by the officer's report.
In contrast, in the circumstances of this case, Dang merely denied the facts described in the reports of the six correctional officers without providing a specific alternative factual scenario when one could, and should, have been provided. Therefore, we conclude a mere denial of the reports' accusations did not constitute a good cause showing in support of Dang's Pitchess motion. (Warrick, supra, 35 Cal.4th at pp. 1024- 1025.) To the extent, as Dang asserts, that he presented a factual scenario that he was, in effect, "doing nothing," we conclude his mere denial of the officers' reports was not the same as an affirmative statement that he was "doing nothing" or otherwise acted in a specific manner different from that presented in the officers' reports.
In any event, "doing nothing" is a colloquial expression with an ambiguous meaning. It is doubtful that any living person can actually "do nothing," as that person generally must breathe, move or remain stationary in a certain position or manner, etc. If Dang were, in fact, "doing nothing," that does not answer the question in this case whether he removed his handkerchief from his head and waved it but did not fling a bindle from it or whether he did not remove and/or wave his handkerchief in any manner.
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As the People note, this case is similar to Thompson, in which the defendant was required to do more than merely deny the officers' reports. In Thompson, the defendant was standing near a street and sold cocaine base to an undercover police officer who gave him two marked $5 bills. (Thompson, supra, 141 Cal.App.4th at p. 1315.) Fellow "buy" team officers heard and saw the exchange and then other, uniformed officers arrested the defendant after the transaction was complete and found the marked bills on the defendant. (Ibid.) In his Pitchess motion, the defendant asserted the officers planted evidence, acted dishonestly, and committed other misconduct. (Thompson, at p. 1317.) The supporting declaration of his counsel stated that " 'the officers did not recover any buy money from the defendant, nor did the defendant offer and sell drugs to the undercover officer.' The 'officers saw defendant and arrested him because he was in an area where they were doing arrests.' When 'defendant was stopped by the police and once they realized he had a prior criminal history they fabricated the alleged events and used narcotics already in their possession and attributed these drugs to the defendant.' The charges 'are a fabrication manufactured by the officers to avoid any type of liability for their mishandling of the situation and to punish the defendant for being in the wrong area, at the wrong time and for having a prior criminal history. . . .' " (Ibid.) Thompson concluded the defendant's showing was insufficient because it was not internally consistent or complete. (Ibid.) The defendant did not present a factual account of the scope of the alleged police misconduct and did "not explain his own actions in a manner that adequately supports his defense." (Ibid.) Rather, the defendant "simply denied the elements of the offense charged." (Ibid.) Thompson stated:
"Thompson does not provide an alternate version of the facts regarding his presence and his actions prior to and at the time of his arrest. He does not explain the facts set forth in the police report. In essence, his declaration claims that the entire incident was fabricated and, by inference, that the police officers conspired to do so in advance . . . to plant narcotics and recorded money in his possession, and to fabricate virtually all the events preceding and following his arrest." (Thompson, supra, 141 Cal.App.4th at p. 1318.)Thompson concluded the defendant did not present a sufficient good cause showing in support of his Pitchess motion. (Id. at pp. 1316-1319.)
Because Dang, like the defendant in Thompson, did not provide alternate versions of the facts regarding his actions during the three crucial events reported by the correctional officers (i.e., waving handkerchief and flinging bindle, chewing and swallowing something, and defecating a bindle) or otherwise explain the facts set forth in those reports, we, like Thompson, conclude Dang did not present a sufficient specific factual scenario of officer misconduct that was plausible considering the officers' reports. (Thompson, supra, 141 Cal.App.4th at p. 1316; Warrick, supra, 35 Cal.4th at p. 1025; Giovanni B. v. Superior Court, supra, 152 Cal.App.4th at pp. 318-319; People v. Sanderson (2010) 181 Cal.App.4th 1334, 1340-1341; City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1150; cf. Uybungco v. Superior Court, supra, 163 Cal.App.4th at pp. 1047, 1049-1050; Brant v. Superior Court (2003) 108 Cal.App.4th 100, 108 ["Brant challenged the officers' account of the detention, search and manner in which his confession was obtained by providing his own version of the events, thereby making the officers' truthfulness material to the issues in the case."].) Because Dang did not make a sufficient good cause showing, we conclude the trial court did not abuse its discretion by denying his Pitchess motion.
DISPOSITION
The judgment is affirmed.
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McDONALD, J.
WE CONCUR:
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NARES, Acting P. J.
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AARON, J.