Opinion
2d Crim. No. B227864
01-19-2012
THE PEOPLE, Plaintiff and Respondent, v. LUIS ENRIQUE MIRANDA, Defendant and Appellant.
Suzann E. Papagoda, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. BA368429)
(Los Angeles County)
Luis Enrique Miranda appeals the judgment entered after a jury convicted him of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). Following his conviction, appellant admitted suffering a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and serving a prior prison term (§ 667.5, subd. (b)). The trial court sentenced him to six years in state prison, consisting of the upper term of three years doubled for the strike prior. He asks us to independently review the record to determine whether the court abused its discretion in denying his Pitchess motion for discovery of confidential law enforcement personnel files. We affirm.
All further undesignated statutory references are to the Penal Code.
(Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).)
Appellant's opening brief also includes a claim that the judgment must be corrected to reflect that the court sentenced him to the midterm, as opposed to the upper term. Appellant abandoned this claim following a hearing in which the trial court concluded that the upper term sentence had been correctly imposed.
FACTS AND PROCEDURAL HISTORY
On February 25, 2010, Los Angeles Police Officers Joel Ruiz and K. Fuentes were among 23 officers who executed a search warrant at 1345 East 28th Street in Los Angeles. The property at the address is a house that is subdivided into two residences. The arrest report submitted by Officer Fuentes states that the warrant was obtained after he and his partner had observed drugs being sold from the yard adjacent to the rear residence. Officer Michel approached the door to the front residence and announced the officers' intent to execute the warrant. After receiving no response, the officers forcibly entered the front residence and found a woman sitting on a couch with her two children. In the meantime, Officer Ruiz walked to the rear residence, looked through an open window, and saw appellant standing in the living room. Appellant reached into his waistband, and Officer Ruiz told him to show his hands. At that point, appellant removed a handgun from his waistband and tossed it onto a table. Officer Ruiz also saw another man toss a handgun into a pile of clothing. Shortly thereafter, Officers Flores and Garcia entered the rear residence and took appellant and several other individuals into custody. Both guns were recovered from the rear residence during execution of the search warrant along with narcotics and drug paraphernalia. It was stipulated that appellant had a prior felony conviction.
Prior to trial, appellant filed a Pitchess motion as to Officers Ruiz and Fuentes seeking "all documents that record or reflect any instance of misconduct, including but not limited to: fabrication of charges, fabrication of evidence, dishonesty, improper tactics, false arrest, excessive use of force, fabrication of police reports, fabrication of probable cause, false testimony, perjury or other instances of conduct unbecoming a peace officer . . . ." In support of the motion, defense counsel filed a declaration alleging that the evidence at trial would establish that appellant was actually in the front residence at the time of the search and did not handle a firearm on that date. The court concluded that appellant had failed to make the showing necessary to warrant an in camera review of the officers' personnel files, and accordingly denied the motion.
Appellant's written motion also sought discovery of information relating to officers Michel, Garcia, and Flores. At the hearing on the motion, appellant withdrew his request for the personnel records of these officers and made clear that he was only seeking information relating to officers Ruiz and Fuentes.
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DISCUSSION
Appellant does not contend the court abused its discretion in denying his Pitchess motion. Instead, he asks us to "conduct an independent review" to determine whether the motion was properly denied. He also urges us to remand the matter for further proceedings if the record reflects that the court failed to comply with its duty to either include or summarize the materials the court reviewed in camera in ruling on the motion, as contemplated in People v. Mooc (2001) 26 Cal.4th 1216, 1219-1220.
In respondent's brief, the People point out that the court did not conduct an in camera review of any materials in adjudicating appellant's Pitchess motion. Rather, it denied the motion on its finding that appellant had failed to make the showing necessary to compel such a procedure. The People urge us to conclude that appellant has forfeited the claim. (See, e.g., People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10.) We decline the invitation.
The motion was properly denied without an in camera hearing. To receive such a hearing, a defendant must establish good cause for discovery of a police officer's confidential personnel records that contain information relevant to the defense. (Pitchess, supra, 11 Cal.3d at pp. 537- 538.) Although the threshold for good cause is relatively low, the defendant "must present . . . a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1025.) 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.)
Appellant's purported showing of good cause consisted of the allegation that the evidence at trial would establish he was actually in the front residence of the building when the search warrant was executed. He further asserted on information and belief that Officers Ruiz and Fuentes had "provided false information in the police report in order to justify" his detention and arrest.
The court did not abuse its discretion in denying discovery because appellant failed to present an alternative factual scenario that was plausible when considered in the context of the entire arrest report. That report reflects that several officers entered the front residence to find a woman sitting on the couch with her two children. It is apparent that the woman was not suspected of participating in the drug sales and that no contraband was found in the front residence. The report further reflects that other officers assisted Officer Ruiz in taking appellant into custody in the back residence along with several other individuals. Appellant's declaration contains no allegation as to how or why these other officers would have conspired with Officers Ruiz and Fuentes to falsely place him in the back residence, or why these officers would have singled him out for punishment. In a similar vein, he fails to explain why his discovery request is limited to Officers Ruiz and Fuentes. " Warrick permits courts to apply common sense in determining what is plausible, and to make determinations based on a reasonable and realistic assessment of the facts and allegations." (People v. Thompson (2006) 141 Cal.App.4th 1312, 1318-1319.) Because appellant's declaration effectively amounted to a mere denial of the facts stated in the arrest report, his Pitchess motion was properly denied without an in camera hearing.
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
COFFEE, J.
Dennis J. Landin, Judge
Superior Court County of Los Angeles
Suzann E. Papagoda, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.