Opinion
NOT TO BE PUBLISHED
Superior Court Los Angeles County No. BA341058-01, Leslie A. Swain, Judge
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Christopher Marshall appeals a judgment following conviction of the sale of cocaine base, with a finding that he suffered two prior drug convictions. (Health & Saf. Code, §§ 11352, subd. (a), 11370.2, subd. (a).) We modify the judgment to reflect an award of presentence custody credit of 1, 408 days, and otherwise affirm.
FACTS AND PROCEDURAL HISTORY
On May 22, 2008, Los Angeles Police Detective Michael Saragueta worked as an undercover narcotics officer in the Huntington Hotel in Los Angeles. The hotel had been the site of many illegal drug transactions and Saragueta, as an undercover officer, had purchased drugs there previously.
That evening, Saragueta approached Marshall as they stood outside the hotel, and asked to buy $20 worth of rock cocaine. Marshall replied that he did not know Saragueta and walked inside. By his response, Saragueta believed that Marshall was "working" as a drug dealer. Saragueta then conversed with George Church, who was standing nearby.
Saragueta walked into the hotel lobby and approached Marshall again. The two men walked outside and Marshall asked Church if he knew Saragueta. Church replied that Saragueta was "all right."
Saragueta and Marshall then walked down the street and Marshall asked Saragueta if he had $30. Saragueta responded that he did. Marshall lent Saragueta a pen to record Marshall's phone number in the event Saragueta wanted to purchase additional drugs. Marshall then gave Saragueta three pieces of rock cocaine. In turn, Saragueta gave Marshall $30 in recorded police funds.
Saragueta walked away and signaled other police officers to arrest Marshall. As undercover officers approached, Marshall ran inside the hotel. Two police officers chased Marshall inside the stairwell and forcibly arrested him. Officer David Cho recovered the $30 in recorded funds from Marshall's pocket. Marshall gave officers a false name upon booking at the jail. Later forensic analysis established the substance sold to Saragueta was cocaine base.
Marshall testified and denied selling cocaine base to Saragueta and denied possessing the recorded funds. He stated that plainclothes police officers struck and kicked him in the stairwell. Marshall admitted that he suffered previous convictions for selling marijuana and cocaine.
The jury convicted Marshall of the sale of cocaine base and found that he suffered two prior drug convictions. (Health & Saf. Code, §§ 11352, subd. (a), 11370.2, subd. (a).) The trial court sentenced him to a four-year midterm to which it added three years for the prior drug conviction enhancement, for a total of seven years. The court also imposed various fines and fees and awarded Marshall 703 days of actual custody credit and 702 days of conduct credit, for a total of 1, 405 days.
Marshall appeals and contends that: 1) the trial court may have abused its discretion regarding disclosure of complaints contained within police personnel files (Pitchess v. Superior Court (1974) 11 Cal.3d 531); 2) the trial court abused its discretion by denying discovery of police complaints concerning excessive force; 3) the trial court erred by denying medical testimony relating to his arrest injuries; 4) the calculation of presentence custody credit is inaccurate.
DISCUSSION
I.
Prior to trial, Marshall filed a motion pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531, seeking discovery of complaints in the police personnel records of the officers involved in the drug-buy and his arrest. The trial court held an in camera hearing, discussed the nature of the documents produced and ordered disclosure of information regarding some, but not all, of the complaints. (The court ordered disclosure of complaints regarding false arrest, planting of evidence, false reporting, and perjury.) Marshall requests that we review the sealed record of the in camera hearing to determine whether the trial court abused its discretion in ruling on the discovery motion. (People v. Prince (2007) 40 Cal.4th 1179, 1286 [appellate court independently reviews sealed record to determine whether trial court abused its discretion regarding disclosure].)
The transcript of the hearing here is sufficient to permit our independent review. (People v. Prince, supra, 40 Cal.4th 1179, 1285 [sufficient basis for review where trial court describes content of complaints in personnel file]; People v. Mooc (2001) 26 Cal.4th 1216, 1229 [same].) We have reviewed the transcript and conclude the trial court did not abuse its discretion regarding disclosure of complaints contained within the police personnel files of officers involved in the drug-buy or Marshall's arrest.
II.
Marshall argues that the trial court abused its discretion by denying discovery of police personnel files regarding excessive force complaints made against the arresting officers, pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531. He asserts that he established that the discovery was necessary to his defense that he did not sell drugs to Saragueta. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024-1025 [defendant must describe a factual scenario supporting the claimed officer misconduct].)
A defendant must establish good cause for discovery of a police officer's confidential personnel records that contain information relevant to the defense. (Pitchess v. Superior Court, supra, 11 Cal.3d 531, 537-538.) Good cause is a "relatively low threshold" and requires a showing that the personnel records are material to the defense and a stated reasonable belief that the records contain the type of information sought. (People v. Thompson (2006) 141 Cal.App.4th 1312, 1316.)
Defendant must also establish a plausible factual foundation for his defense. (Warrick v. Superior Court, supra, 35 Cal.4th 1011, 1025.) To do so, the defendant "must present... a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents." (Ibid.) A scenario sufficient to establish a plausible factual foundation is one that might or could have occurred. "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." (Id. at p. 1026.)
Depending on the circumstances of the case, the denial of facts described in the police report may establish a plausible factual foundation. (Warrick v. Superior Court, supra, 35 Cal.4th 1011, 1024-1025.) The factual scenario need not be reasonably likely, persuasive, or even credible. (Id. at pp. 1025-1026; People v. Thompson, supra, 141 Cal.App.4th 1312, 1318.)
The trial court denied discovery of excessive force complaints because the evidence was not relevant to Marshall's defense. In ruling, the trial judge stated: "Even if you're correct that you didn't do anything to justify that the police beat you up, and even if they did, in fact, beat you up, it has nothing to do with this case. So you're not entitled to complaints against them for use of excessive force."
We conclude that the trial court reasonably decided that Marshall did not present "a specific factual scenario that is plausible when read in light of the pertinent documents and undisputed circumstances." (People v. Thompson, supra, 141 Cal.App.4th 1312, 1316.) Use of excessive force during Marshall's arrest is not relevant to whether he sold cocaine base to Sargueta. Marshall thus did not demonstrate "a logical link between the defense proposed and the pending charge." (Warrick v. Superior Court, supra, 35 Cal.4th 1011, 1021 [trial court may exclude discovery of officer information that is irrelevant to pending charges].) The court did not abuse its discretion by denying discovery of excessive force complaints.
III.
Marshall asserts that the trial court abused its discretion by disallowing medical testimony regarding his arrest injuries. He argues that the evidence was relevant to his defense that police officers planted recorded buy money to conceal their use of excessive force against him. Marshall contends that he was denied a fair trial and due process of law because the medical testimony was "crucial to his defense." He asserts that the error is not harmless beyond a reasonable doubt.
Pursuant to Evidence Code section 352, the trial court denied Marshall's request to call medical witnesses and present evidence of his medical records other than testimony by the physician who treated him after his arrest. Marshall appeared in propria persona during trial and did not serve a subpoena upon his treating physician. Marshall testified at trial that arresting officers struck and kicked him.
The trial court did not err in ruling that the medical testimony and records were inadmissible as irrelevant. The trial court has a wide discretion in determining the relevancy of evidence. (People v. Scheid (1997) 16 Cal.4th 1, 13-14.) We review the court's decision for an abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.)
Here Marshall testified as to his injuries and police officers confirmed that they forcibly arrested him. Further evidence of injuries was irrelevant to the charged crime of the sale of cocaine base.
Moreover, no due process violation occurred. Application of the ordinary rules of evidence does not impermissibly infringe upon an accused's constitutional right to present a defense. (Crane v. Kentucky (1986) 476 U.S. 683, 689-690; People v. Lawley (2002) 27 Cal.4th 102, 155.) Trial judges have "'wide latitude'" to exclude "'marginally relevant'" evidence without violating a defendant's right to present a defense. (Crane, at p. 689.)
IV.
Marshall contends that the trial court erred by calculating his presentence custody credit as 1, 405 days. He asserts that he is entitled to 704 days of actual custody credit and 704 days of conduct credit pursuant to Penal Code section 4019, for a total of 1, 408 days.
At sentencing, the trial court stated that by its calculations, Marshall was entitled to 1, 405 days of credit. Marshall objected that the award was "a couple days off." The court then recalculated the award but arrived at the same number. Marshall is correct that the court erred in its calculations. (People v. Acosta (1996) 48 Cal.App.4th 411, 427 [reviewing court may consider issue of presentence custody credit where appeal raises other issues].)
We modify the judgment to award Marshall a total of 1, 408 days of presentence custody credit and otherwise affirm. The trial court shall amend the abstract of judgment accordingly and forward the amended abstract to the Department of Corrections and Rehabilitation.
We concur: YEGAN, J., PERREN, J.