Opinion
D049603
4-25-2007
THE PEOPLE, Plaintiff and Respondent, v. PAUL LASOYA, Defendant and Appellant.
NOT TO BE PUBLISHED
Paul Lasoya was convicted by a jury of possession of methamphetamine and marijuana for sale (Health & Safety Code, §§ 11378, 11359). True findings were made that he had suffered two prior controlled substance offenses within the meaning of Health & Safety Code section 11370.2, subdivision (c), had a prior serious or violent felony conviction within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)) and four prison prior convictions (Pen. Code, § 667.5, subd. (b)). He was sentenced to a prison term of 13 years and four months.
Lasoya contends the court erred in denying his motion to suppress evidence and a Pitchess motion. We affirm the judgment.
FACTS
The police found baggies of methamphetamine and marijuana in Lasoyas pocket. Based on the amount of the drugs, the packaging, the presence of empty baggies, and a scale in Lasoyas backpack, a police detective concluded the drugs were possessed for the purposes of sale.
In 1993 and 1998 Lasoya had also been found in possession of marijuana and methamphetamine for sale.
DISCUSSION
I
Denial of Suppression Motion
Lasoya contends the court erred in denying his suppression motion based on finding the initial stop was consensual and that he consented to the police search.
Facts Relating to Suppression Motion
On August 29, 2003, uniformed Riverside Police Officer Laura DiGiorgio was patrolling in a marked car when she saw Lasoya and another man, Timothy Moore. Moore was riding a bicycle on the sidewalk in violation of the Vehicle Code. Lasoya was carrying a backpack and wearing a large jacket, unusual clothing for the end of August; it "looked weird" to the officer. Officer DiGiorgio drove around the block and when she returned, she saw Lasoya and Morris walking up the driveway of a house that was boarded up. She parked in the driveway. Before contacting Lasoya and Morris, she activated an audio digital recorder on her belt.
Officer DiGiorgio called out to Lasoya and Morris. They turned around to talk to her. After they talked about Morris riding his bicycle on the sidewalk, the officer asked if the men were on probation or parole or had any weapons. Lasoya and Morris denied being on parole, probation or having weapons. She asked if she could pat them down for weapons and they both lifted their arms indicating consent.
While Officer DiGiorgio was patting down Lasoya, she felt a crinkly type substance in his pocket and asked if she could retrieve the item. Lasoya said, "Go ahead," or words to that effect. She retrieved the item, which contained methamphetamine, and placed him under arrest.
The trial court found the interaction between Lasoya and the officer involved a consensual encounter and consent to search. In making this determination, the court considered not only Officer DiGiorgios testimony at the hearing but listened to the digital belt recording of the encounter. The court noted the officer spoke politely, not forcefully, and the tone of the responses by Lasoya and Morris were "very low key [and] conversational in nature." The court found the two men, in response to the officers question whether they had weapons, both raised their hands from their sides even though the officer had not requested them to do so, and this conduct indicated their consent to be searched for weapons. The court noted the officer had not issued "any type of specific orders" until after she found the drugs.
Initial Stop
"`or purposes of Fourth Amendment analysis, there are basically three different categories or levels of police "contacts" or "interactions" with individuals, ranging from the least to the most intrusive. First, there are . . . "consensual encounters" [citation], which are those police-individual interactions which result in no restraint of an individuals liberty whatsoever — i.e., no "seizure," however minimal — and which may properly be initiated by police officers even if they lack any "objective justification." [Citation.] Second, there are what are commonly termed "detentions," seizures of an individual which are strictly limited in duration, scope and purpose, and which may be undertaken by the police "if there is an articulable suspicion that a person has committed or is about to commit a crime." [Citation.] Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention, seizures which include formal arrests and restraints on an individuals liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime." (In re James D. (1987) 43Cal. 3d 903, 911-912; People v. Hughes (2002) 27 Cal.4th 287, 327-328.)
"[A] detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individuals liberty, does a seizure occur. [Citations.]" (In re Manuel G. (1997) 16 Cal.4th 805, 821; People v. Colt (2004) 118 Cal.App.4th 1404, 1411.)
"The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Here, Officer DiGiorgio did not order Lasoya or Morris to stop. Rather, she called out to them, politely indicating she wanted to speak to them while they were all on the driveway. The interaction was conversational in nature rather than confrontational or involving a show of authority. This contact was a consensual encounter and not a detention requiring an articulable suspicion of criminal activity.
Consent to Search
Lasoya contends that the court erred in finding he consented to being patted down for weapons and in finding that, even if he had consented to the weapons pat-down, Officer DiGiorgio exceeded the scope of his consent when she removed the drugs from his pocket.
A warrantless search may be based on the consent of an individual. (People v. Boyer (2006) 38 Cal.4th 412, 445.) "The standard for measuring the scope of a suspects consent under the Fourth Amendment is that of `objective reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?" (Florida v. Jimeno (1991) 500 U.S. 248, 251; People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.) "A consensual search may not legally exceed the scope of the consent supporting it." (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.)
"[T]he prosecutor has the burden of establishing that consent given for a search was freely and voluntarily given." (In re Rudy F. (2004) 117 Cal.App.4th 1124, 1130-1131.) "[T]he voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, `The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial courts findings — whether express or implied — must be upheld if supported by substantial evidence." (People v. James (1977) 19 Cal.3d 99, 107, disapproved on another ground in People v. Haskett (1982) 30 Cal.3d 841, 857, fn. 6; People v. Monterroso (2004) 34 Cal.4th 743, 758.)
Here, the evidence supports a conclusion Lasoya nonverbally consented to the search for weapons by raising his arms when Officer DiGiorgio asked if she could search for weapons. The evidence also supports a conclusion Lasoya consented to Officer DiGiorgios search of his pocket and retrieval of the drugs. Officer DiGiorgio testified that when she asked Lasoya if she could remove the item she had felt in his pocket, he indicated his consent by saying, "Go ahead," or words to that effect. The trial court found this testimony credible and we are bound by its determination.
We conclude the trial court committed no error in denying Lasoyas motion to suppress.
II
Pitchess Motion
Lasoya contends the court erred in denying his Pitchess motion for a review of Officer DiGiorgios personnel records to determine if there had been past complaints made against her for acts "constituting racial prejudice, dishonesty, false arrest, illegal search and seizure, the fabrication of charges and/or evidence" or "acts of aggressive behavior, acts of violence and/or attempted violence, acts of excessive force and/or attempted excessive force."
Named after Pitchess, supra, 11 Cal.3d 531, and now codified in Evidence Code sections 1043 to 1045, "a motion to discover information from a police officers personnel file permits disclosure of confidential information only under specified conditions." (People v. Cook (2006) 39 Cal.4th 566, 616.) "To initiate discovery, the defendant must file a motion supported by affidavits showing `good cause for the discovery, first by demonstrating the materiality of the information to the pending litigation, and second by `stating upon reasonable belief that the police agency has the records or information at issue. (Evid. Code, § 1043, subd. (b)(3).) This two-part showing of good cause is a `relatively low threshold for discovery." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.)
"Regardless of how the materiality inquiry is described, however, a showing of good cause requires a defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officers version of events. This court has long required that the information sought must be described with some specificity to ensure that the defendants request is not so broad as to garner `"all information which has been obtained by the People in their investigation of the crime" but is limited to instances of officer misconduct related to the misconduct asserted by the defendant. [Citations.] [¶] This specificity requirement excludes requests for officer information that are irrelevant to the pending charges." (Warrick v. Superior Court, supra, 35 Cal.4th 1011, 1021-1022.)
"Trial courts are granted wide discretion when ruling on a motion to discover such records." (People v. Memro (1995) 11 Cal.4th 786, 832.)
Here, Lasoyas request was clearly overbroad. His request included complaints for false arrest, fabrication of charges and evidence, and the use of aggressive behavior, violence and/or excessive force, none of which had a factual basis. Lasoya presented no declarations or other evidence that would support a finding the drugs were not found in his possession or that Officer DiGiorgio engaged in any aggressive behavior, violence or excessive force. Thus, Lasoya failed to make a showing of materiality, that is, that complaints in Officer DiGiorgios personnel files as to these matters would have been relevant to his defense in this particular case.
Lasoyas request for information about complaints as to "illegal search and seizure" was based on discrepancies between the police report, different versions of the belt recording and the officers testimony at the preliminary hearing and at the suppression hearing. In the police report as well as at the preliminary and suppression hearings, Officer DiGiorgio stated Lasoya consented to the search. As to the belt recording, there were three different transcripts created: the prosecutors version, the public defenders version, and an "enhanced" version.
The prosecution transcript reflects that when the officer asked if Lasoya and Morris had any weapons, both answered no and in bracket indicates: "At this time Timothy and Lasoya raised [their] hands to indicate OK to check." As to the search of the pocket, the prosecutors transcript shows when the officer found the drug packet in Lasoyas pocket, she asked what it was, she said, "I can get it," and Lasoya responded, "Uh-huh." In the public defenders and the enhanced versions of the transcripts, when Officer DiGiorgio indicates she would like to pat down Lasoya for weapons, there is no bracketed material indicating Lasoya and Morris raised their hands. As to the search of the pocket, the public defenders transcript reflects the officer stating, "What is that, Bud? What is that, . . . "with Lasoya responding, "Im not." The enhanced transcript, which is longer and more detailed, shows Officer DiGiorgio saying, "What is that, bud? Whats that, and youre gay?" with Lasoya responding, "Im not." Officer DiGiorgio testified there were problems with the recording. She testified Lasoyas voice was "very low" and "gurgled" and there were times when he spoke and his voice was not recorded.
While there were variations among the police reports, testimony and transcripts, none tended to show the search was not consensual. For example, nothing contradicted Officer DiGiorgios testimony that Lasoya and Morris consented to the search for weapons by raising their arms. As to the pocket search, although not all the transcripts of the belt recording reflect Lasoya verbally consenting to the removal of the item from his pocket, nothing presented by Lasoya in support of his Pitchess motion contradicted Officer DiGiorgios testimony that Lasoyas voice was very low, gurgled, and not always recorded by the belt recorder. Lasoya did not submit a declaration or any other evidence disputing Officer DiGiorgios testimony or showing he had objected to the search or seizure. Thus, Lasoya failed to make a sufficient showing of materiality.
We find no abuse of discretion by the trial court in denying the Pitchess motion.
DISPOSITION
The judgment is affirmed.
We Concur:
BENKE, J.
HALLER, J. --------------- Notes: Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).