Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Carol Rehm, Judge, Los Angeles County Super. Ct. No. BA275052
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews, Shawn McGahey Webb and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Horacio Naya, also known as Jose Carlos and Samuel Chegue, appeals from the judgment entered upon his conviction by jury of one count of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)). The trial court found to be true the allegations that appellant had suffered a prior conviction of a narcotics-related offense within the meaning of Health and Safety Code, section 11370.2, subdivision (a) and had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). It sentenced appellant to the upper term of five years for selling cocaine, plus three years for the prior drug-related offense and one additional year for each of the three prior prison terms. Appellant contends that the trial court erred (1) in denying his Pitchess motion, (2) in instructing the jury in accordance with CALJIC No. 2.06, and (3) in ordering appellant to pay attorney’s fees in the absence of evidence of his ability to pay, and (4) further contends that imposition of the upper-term sentence based upon facts found by the trial court violated his right to a jury trial of those facts, as set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Appellant also requests us to review in camera proceedings to determine whether the trial court properly sustained police witnesses’ assertion of the official information privilege contained in Evidence Code section 1040.
All further statutory references are to the Penal Code unless otherwise indicated.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We filed our original opinion in this matter on July 24, 2006. The United States Supreme Court granted certiorari and on February 20, 2007 vacated the judgment in this matter and remanded it to this court with directions to reconsider this matter in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
By order dated August 6, 2007, we authorized the parties to file supplemental briefs for further consideration of this matter in light of Cunningham and the California Supreme Court’s decisions in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). On August 15, 2007, appellant filed his supplemental brief, and, on October 2, 2007, respondent filed its responding brief.
Having reconsidered the matter in light of the above-mentioned recent authorities, we now reverse with directions.
Except for our discussion in part V, ante, the opinion we now file is substantially the same as our opinion filed on July 24, 2006.
FACTUAL BACKGROUND
On July 29, 2004, at approximately 9:00 p.m., Los Angeles Police Officer Damien Levesque and his partner, Officer Matthew Ziegler, went to the area of Seventh and South Carondelet Streets, in the City of Los Angeles, to set up a surveillance. The area is primarily residential, but 707 South Carondelet Street is a small liquor store. Numerous citizen complaints had been received of drug sales in that area, a known drug area, by members of the Marasalvatrucca criminal street gang, also known as the M.S. gang. Officer Levesque had had three prior contacts with appellant in the preceding weeks, the most recent just 15 minutes before setting up the surveillance. During the contacts appellant admitted being a longstanding member of the M.S. gang.
After setting up the surveillance, Officer Levesque observed appellant standing on the sidewalk, between 707 and 717 South Carondelet waving his hands at passing vehicles. Officer Levesque was positioned 150 to 175 feet from appellant and was using very strong binoculars. His position was elevated and the focus of his observations was directly in front of him, not at an angle. He had “a clear and unobstructed view of [appellant] and his entire transaction with each of the different males that approached him.” There were streetlights and light coming from the liquor store.
Officer Ziegler estimated that he was 140 to 150 feet from appellant.
Officer Levesque observed an African-American man approach appellant and extend his right hand, which was holding an unknown amount of United States currency. Appellant accepted the money with his left hand and simultaneously placed his right hand in a cupped position over his mouth from which he retrieved an unknown object. He then extended his cupped hand to the other man, who accepted the contents in his palm. That person then placed his palm to his mouth, as if putting something inside it, and walked away. The officers took no action because drug buyers and sellers often place narcotics in their mouths so they can be easily swallowed if they are detained by police. Cocaine base does not dissolve in the mouth.
Approximately five minutes later, another African-American man approached appellant. He handed appellant an unknown amount of money with his right hand. Appellant accepted the money with his right hand and cupped his left hand, placed it over his mouth from which he retrieved an unknown object that he placed in the other man’s palm. The man closed his fist and walked away. Officer Ziegler contacted the chase team of Edgar and Steve Hernandez, and instructed Officer Edgar Hernandez to detain the individual. When the officer first saw the man, the man’s hands were open at his side. Nothing was recovered from this individual.
Five minutes later, a third African-American man approached appellant and engaged in a brief conversation. This person extended his right hand, which contained currency. Appellant took the money and placed it into his right front pocket, retrieved unknown objects from his mouth and placed them with his thumb and index fingers into the third man’s palm. The man accepted the objects, placed them into his right front shorts pocket and walked away. Officer Ziegler alerted the chase team of Officer Andrade and Officer Cota. When Officer Cota first saw the individual, the person had his right hand in his shorts pocket. He was arrested. The officers recovered off-white wafers, later determined to contain cocaine, from his right front shorts pocket.
All three contacts by appellant occurred within a 15 to 20 foot span, in front of 707 South Carondelet. All three of the men were M.S. gang members. None entered the liquor store. During the transactions, Officer Ziegler saw appellant bend down at least twice near a bushy area. He checked that area after appellant was detained but recovered nothing.
Officer Levesque saw the Hernandez chase team approach and detain appellant. He did not try to flee or discard any weapons or objects. He simply quickly turned from the officers and tried to walk away. Officer Edgar Hernandez searched around the area where appellant was detained and searched appellant. He used his flashlight to see the ground because, although lit sufficiently to clearly see a person handing currency to another person, it was not well lit. No weapon or cell phone was recovered from appellant.
At the station, Officer Levesque saw Officer Andrade and Officer Cota with Wilson, the third man who made contact with appellant. As Officer Levesque booked appellant, appellant told him that his name was Samuel Chegue, gave a home address that was not near the arrest location and said he was unemployed. Officer Andrade searched appellant and recovered $78 in various small denominations.
Officer Hernandez testified that sellers generally have a stash or hiding spot for their drugs next to them when they are selling. They put some of the drugs in their mouth so they can be swallowed if police detain them.
Garrett Fitzgerald, a narcotics buy expert, opined that the scenario on the evening of the surveillance indicated that appellant was selling narcotics to each of the three individuals who approached.
DISCUSSION
I. Official Information Privilege
After the jury was selected but before trial testimony began, Officer Levesque testified in open court, without the jury present, that he and Officer Ziegler observed appellant from an observation post. He stated that when he testified before the jury, he would assert the “official information” privilege in Evidence Code section 1040 to questioning regarding the exact location of his surveillance position. The trial court then conducted an in camera hearing with Officer Levesque and the court reporter alone. At the conclusion of the hearing, the trial court ruled that disclosure of the surveillance location would not be material to the defense’s case and upheld assertion of the privilege.
Appellant requests that we review the in camera proceedings to determine whether the trial court erred in upholding the official information privilege. He argues that the privilege must give way when it deprives the defendant of information that might be material to the defense. We have reviewed the transcript of the in camera proceeding and conclude that in this case the exact location of the surveillance post is immaterial, and the trial court did not therefore err in upholding the privilege.
Evidence Code section 1040 provides: “(a) As used in this section, ‘official information’ means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made. [¶] (b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and: [¶] . . . [¶] (2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.” The comment to this section by the Assembly Committee on Judiciary states: “The judge must determine in each instance the consequences to the public of disclosure and the consequences to the litigant of nondisclosure and then decide which outweighs the other. He should, of course, be aware that the public has an interest in seeing that justice is done in the particular cause as well as an interest in the secrecy of the information.” (See Marylander v. Superior Court (2000) 81 Cal.App.4th 1119, 1126, [balancing test applicable to determining whether to disclose confidential official information].)
If the claim of privilege is sustained, the trial court must make an order or finding adverse to the public entity on the issue to which the privileged information is material. (Evid. Code, § 1042, subd. (a).) Conversely, no such finding or order is required if the information is not material. (See People v. Garza (1995) 32 Cal.App.4th 148, 153-154.)
Included within the public information privilege is the exact location of a surveillance site if the public interest in preserving the confidentiality of that information outweighs the need for disclosure. (In re Sergio M. (1993) 13 Cal.App.4th 809, 813.) The burden of establishing the privilege is upon the government. (People v. Superior Court (Barrett)(2000) 80 Cal.App.4th 1305, 1317.) Whether the nondisclosure of the precise surveillance location is material to the defense, turns upon the extent to which the view from the location is obstructed. (See People v. Haider (19995) 34 Cal.App.4th 661, 667-668.) “However, the test of materiality is not simple relevance; it is whether the nondisclosure might deprive defendant of his or her due process right to a fair trial. [Citation.] Under section 1042, subdivision (d), ‘[t]he court shall not order disclosure, nor strike the testimony of the witness who invokes the privilege, nor dismiss the criminal proceeding, if the party offering the witness refuses to disclose the identity of the informant, unless, based upon the evidence presented at the hearing held in the presence of the defendant and his counsel and the evidence presented at the in camera hearing, the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.’ (Italics added.) The requirement of a reasonable possibility that the nondisclosure might deprive defendant of a fair trial is the ‘crucial standard.’ [Citation.]” (See People v. Garza, supra, 32 Cal.App.4th at pp. 153-154.)
Here, Officer Levesque testified at the in camera hearing to the considerable dangers to police officers and others if the privileged information were disclosed. He also reiterated that he had an unobstructed view of each of the contacts appellant made and of his use of strong binoculars. At trial, appellant was permitted to inquire of the police officers their distance from the incidents, their use of binoculars, their angle of vision, the extent to which the view was obstructed, the lighting conditions at the time, and that the officers’ vantage was from an elevated position. Given the officers’ unobstructed view, the detailed description of what Officer Levesque saw and the breadth of the inquiry regarding the surveillance location to which responses were given, the precise location of the surveillance location was immaterial.
II. Pitchess motion
Appellant filed an amended Pitchess motion supported by the declaration of his counsel. The declaration stated on information and belief that police claims that they saw appellant selling drugs were false and were fabricated. Contrary to the version of events contained in the police report that officers saw appellant engage in at least three narcotics sales, appellant asserted that he never had possession of, nor did he sell, any drugs and none were found on him. He was at the arrest location to get something to eat and was arrested merely because he was in a high drug area, and police had had previous contacts with him.
The motion sought materials from the police department personnel files of Officer Levesque, Officer Ziegler and Officer Andrade. The requested materials were: “1. The names, addresses, and telephone numbers of all persons who have filed complaints with, or who were interviewed by investigators or other personnel from the Los Angeles Police Department (hereafter “Investigating Department”) against Officers Zeigler [sic], Levesque and Andrade, relating to their individual acts of false arrest, illegal search and seizure, the fabrication of charges and/or evidence, dishonesty and improper tactics . . . such as conduct unbecoming an officer, neglect of duty, false arrest and the planting of evidence, dishonesty or coercion in effecting detentions or arrests and in conducting interviews with and obtaining statements from, witnesses, suspects and arrestees as well as the dates of the filing of such complaints. [¶] 2. Verbatim copies of all statements, written or oral, made by persons filing complaints or interviewed during investigations of such complaints. [¶] 3. Copies of all investigative reports prepared by members of the Investigating Department of such complaints. [¶] 4. All records of statements, reputations, or opinions, including findings, letters, formal reports, and oral conversations, made by psychiatrists, psychologists, superior officers, and fellow officers of Officers Zeigler [sic], Levesque and Andrade. [¶] 5. All findings, reports, opinions, and transcripts of disciplinary actions or proceedings commenced or taken regarding Officers Zeigler [sic], Levesque and Andrade by the Investigating Department relating to the acts described in Paragraph 1. [¶] 6. All findings, reports, opinions, and transcripts of disciplinary actions or proceedings, sometimes known as Board of Rights hearings, commenced or taken regarding the above-named officers by the Investing [sic] Department relating to those officers’ misconduct.”
The trial court denied the motion finding that there was an insufficient factual scenario to grant it. It elaborated that, “in light of all of the observations and the fact that there was someone actually arrested right after having been observed making contact with your client and also the activities that were observed that has not been discussed in any way, shape or form by your client, and that actually they found corroborating evidence on the other person that was stopped. There is insufficient factual scenario of a probability that I would need before I will enter someone’s personnel files.” The trial court continued that, “bald claiming of harassment because of prior contacts is insufficient.”
Appellant contends that the trial court abused its discretion in denying his request for an in camera hearing to determine whether he was entitled to discover Officer Ziegler’s and Officer Levesque’s personnel records. He argues that he established good cause for the production by his assertion that contrary to the police report, he claimed that he never had any drugs nor did he sell any drugs. This contention is meritorious.
While records of Officer Andrade were also sought in the Pitchess motion, appellant does not seek those records on this appeal, and they are not generally discoverable in any event. (See Evid. Code, § 1047 [“records of peace officers . . . not present during the arrest or [who] had no contact with the party seeking disclosure from the time of the arrest until the time of booking, or who were not present at the time the conduct is alleged to have occurred within a jail facility, shall not be subject to disclosure”].)
To obtain disclosure of police personnel records, the defendant must submit affidavits establishing “good cause.” (Evid. Code, § 1043, subd. (b)(3); Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) The affidavits may be on information and belief and need not be made on personal knowledge. (People v. Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc).) Good cause for discovery exists when the defendant demonstrates (1) materiality of the requested material to the subject matter of the pending action, and (2) a reasonable belief the agency has the type of information sought. (Evid. Code, § 1043, subd. (b)(3); Warrick, supra, at pp. 1016, 1019.) A showing of materiality requires the defendant to set forth a “specific factual scenario” of officer misconduct applicable to his or her case that establishes a “plausible factual foundation” and articulates a valid theory of admissibility for the information sought. (Warrick, supra, at pp. 1025-1026.) A “plausible scenario of officer misconduct is one that might or could have occurred.” (Id. at p. 1026.) The trial court does not determine whether the defendant’s version of events is persuasive. (Id. at p. 1026.) “[T]he trial court looks to whether the defendant has established the materiality of the requested information to the pending litigation.” (Ibid.) Mere relevance to credibility is insufficient to warrant disclosure, without a showing of good cause. (See California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1023-1024.) To permit discovery of any generally relevant matter in a peace officer’s personnel file would effectively destroy the protection provided those files in Evidence Code sections 1043 through 1045. (California Highway Patrol v. Superior Court, supra, at pp. 1023-1024.)
We review a trial court’s ruling on a Pitchess motion for abuse of discretion. (People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221.) That discretion is broad. (People v. Samayoa (1997) 15 Cal.4th 795, 827.)
Respondent argues that appellant’s claim is implausible because there was no place in the area he was standing to get something to eat, he was miles away from where he lived and there was no evidence of how he got there. He was arrested by a team of six officers and “it is illogical, counter-intuitive and therefore implausible . . . to assume that Officers Levesque and Ziegler decided to harass appellant so they could avoid a charge of harassment, much less that Officers Hernandez, Hernandez, Cota and Andrade all agreed to help them do so.” The trial court appears to have accepted a similar argument. It based its denial of the Pitchess motion on the “observations,” that “someone actually [was] arrested,” and “they found corroborating evidence on the other person that was stopped.” Respondent’s argument and the trial court’s ruling deviate from the dictates of Warrick. They involve weighing the evidence and assessing its persuasiveness, an approach explicitly rejected by Warrick. (Warrick, supra, 35 Cal.4th at p. 1026.)
When the appropriate standard is applied, it is clear that appellant met the relatively low threshold for good cause. (Warrick, supra, 35 Cal.4th at p. 1019.) He has set forth a specific factual scenario that he was between 707 and 717 South Carondelet Street to get something to eat and did not possess or sell drugs there. This scenario established a plausible factual foundation for a claim that the officers fabricated the facts. The trial court, therefore, should have conducted an in camera hearing to determine if there were any other similar complaints against the officers.
Respondent argues that even if we find that the trial court erred in failing to conduct an in camera hearing, most of the information appellant requested was not discoverable. We agree. Much of the requested information was not discoverable for a myriad of reasons.
Under appellant’s scenario, the primary wrongdoing of the officers was fabrication and dishonesty in reporting the incident. Thus, discovery must be limited to claims of those specific types of malfeasance, and appellant’s request for information pertaining to other types of wrongdoing is inappropriate. Consequently, appellant is only entitled to information pertaining to fabrication, false statements and similar matters. The request in category No. 1 for complaints pertaining to “false arrest, illegal search and seizure, . . . planting of evidence [and] dishonesty or coercion in effecting detentions or arrests and in conducting interviews with and obtaining statements from, witnesses, suspects, and arrestees,” and category No. 5, to the extent it incorporates these requests in category No. 1, are not sufficiently related to the malfeasance established by appellant’s plausible factual foundation so as to warrant the wholesale intrusion into the personnel files of the designated officers.
Further, the information sought must be described with sufficient particularity to insure that the request is not so broad as to garner all information obtained by the People in investigating the crime and is related to the misconduct. (Warrick, supra, 35 Cal.4that p. 1021.) Overbroad requests are impermissible. (See People v. Jackson, supra, 13 Cal.4th at p. 1220; City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1150.) The requests in category No. 1 for information pertaining to officer “dishonesty and improper tactics . . . such as conduct unbecoming an officer, neglect of duty . . .” and the requests in category Nos. 3, 4, 6 and category No. 5, insofar as it incorporates the above items in category No. 1, are so overbroad and nonspecific as to virtually ask for the officers’ entire personnel files. Such requests are improper and responses to them need not be produced.
In category No. 4, appellant seeks the reports, findings, letters, and oral conversations of psychologists and psychiatrists regarding the challenged officers. Such reports are presumptively within the psychotherapist-patient privilege in Evidence Code sections 1012 and 1014. Appellant provided no evidence to indicate the inapplicability of that privilege to such records. Consequently, the information sought need not be produced.
Finally, the trial court may not disclose complaints more than five years old, the “conclusions of any officer” who investigates a citizen complaint of police misconduct, or facts “so remote as to make [their] disclosure of little or no practical benefit.” (Evid. Code, § 1045, subd. (b); see City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 9.) Category No. 3, seeking all investigative reports prepared by members of the Investigating Department, category No. 4, seeking opinions and formal reports of superior and fellow officers and category Nos. 5 and 6, seeking reports and opinions of disciplinary hearings, are not discoverable insofar as they contain “conclusions of any officer.”
With respect to the information properly requested, “Typically, the trial court discloses only the names, addresses, and telephone numbers of individuals who have witnessed, or have previously filed complaints about, similar misconduct by the officer. [Citation.] That practice ‘imposes a further safeguard to protect officer privacy where the relevance of the information sought is minimal and the officer’s privacy concerns are substantial. [Citation.]’” (Warrick, supra, 35 Cal.4th at p. 1019; see also Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107, 1112.) Requiring disclosure of information in addition to the names and addresses of complainants would be premature absent a showing the complainants were unavailable for interview or could not recall events. (City of Azusa v. Superior Court (1987) 191 Cal.App.3d 693, 696-697.) A defendant can move for further discovery if the names of the complainants and contact data prove to be inadequate for the defendant to prove his or her case. (Kevin L. v. Superior Court (1976) 62 Cal.App.3d 823, 828-829.) Thus, under most circumstances, the complaints properly sought in category No. 1 and the statements and other documents properly sought in category No. 2, would not be provided to the defendant until a showing of inability to independently obtain the information was made. Here, however, given the procedural posture of this case, as discussed below, the complaints and statements that are germane should be provided with protected information contained in them redacted.
Our conclusion that the trial court erred in failing to provide an in camera review of some of the information requested by appellant does not end our inquiry. Appellant must still demonstrate that he was prejudiced from the denial of discovery. (People v. Memro (1985) 38 Cal.3d 658, 684.) We are unable to conclude that there is a reasonable probability that the discovery sought in this case would have led to admissible evidence helpful to appellant in his defense. (See People v. Gill (1997) 60 Cal.App.4th 743, 750-751.) There may not have been any complaints against the officers for the type of conduct appellant sought. In that case, appellant would not have been prejudiced because access to the officer’s file would not have led to any admissible evidence at trial. However, we must consider the possibility that such evidence may exist. Therefore, a special disposition is required in this case.
In People v. Gill, supra, 60 Cal.App.4th 743, this court was faced with an identical situation and adopted a procedure appropriate here. There, the trial court had denied the defendant’s discovery request, and on appeal from a judgment of conviction, we found that the defendant had made the requisite showing of good cause, entitling him to an in camera review of the officer’s file. (Id. at p. 750.) We concluded that the proper disposition would be to remand the case to the trial court to conduct an in camera hearing on the discovery motion. If the hearing resulted in no discoverable information, the judgment was ordered affirmed. (Id. at p. 751.) If, however, it yielded discoverable information in the officers’ file, the defendant should be given an opportunity to determine if the information would have led to any relevant, admissible evidence that he could have presented at trial. (See People v. Memro, supra, 38 Cal.3d at p. 684 [“It is settled that an accused must demonstrate that prejudice resulted from a trial court’s error in denying discovery.”].) If the defendant was able to demonstrate that he or she was prejudiced by the denial of the discovery, the trial court was to order a new trial. If appellant was unable to show any prejudice, then the conviction was to be ordered reinstated, and the judgment ordered affirmed. (See also People v. Coyer (1983) 142 Cal.App.3d 839, 844-845.)
Here too, we cannot say whether there was any discoverable information in Officer Levesque or Officer Ziegeler’s files. Therefore, we will follow the above described procedure outlined in Gill. Because this case has already been tried, the usual rule of providing the defendant only with the names and contact information for witnesses and complainants would not provide adequate information for appellant to argue whether he was prejudiced by the denial of discovery. Thus, in this context, we direct the trial court to provide the complaints, statements and other information to which appellant is entitled, appropriately redacted, without first requiring him to show unavailability or lack of memory of the complainants and/or witnesses. (See People v. Coyer, supra, 142 Cal.App.3d 839, 844-845: [“‘In its disposition of a criminal case the appellate court is not limited to the more common options of affirmance, reversal or modification of the judgment or order appealed from. The court “may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.” (Pen. Code, § 1260].)’”
III. CALJIC No. 2.06
The trial court asked the prosecutor if she wished a destruction of evidence instruction. She did, and over defense objection, the trial court instructed the jury in accordance with CALJIC No. 2.06, as follows: “If you find that a defendant attempted to suppress evidence against himself in any manner, such as by destroying or by concealing evidence, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, is for you to decide.”
Appellant contends that the trial court erred in instructing the jury in accordance with CALJIC No. 2.06. He argues that there was no substantial evidence to justify giving the instruction because appellant’s mere act of turning around when the police approached him and the speculation that he then swallowed drugs in his mouth was insufficient. Appellant further contends that the error was prejudicial because the evidence against him was weak. These contentions are without merit.
In criminal cases, “‘“even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.”’” (People v. Breverman (1998) 19 Cal.4th 142, 154.) A requested jury instruction must be given on every material question “upon which there is any evidence deserving of any consideration whatever . . . .” (People v. Burns (1948) 88 Cal.App.2d 867, 871.) The trial court’s duty to instruct on general principles of law and defenses not inconsistent with the defendant’s theory of the case arises only when there is substantial evidence to support giving such an instruction. (People v. Crew (2003) 31 Cal.4th 822, 835.) Substantial evidence is evidence of reasonable, credible value. (Ibid.) Before a jury can be instructed that it can draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference. (People v. Hannon (1977) 19 Cal.3d 588, 597.) It is error to give even a correct instruction if it has no application to the facts in the case. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
While evidence of destruction of evidence in this case was far from overwhelming, it was sufficient to permit such an inference and to justify giving CALJIC No. 2.06. There was expert testimony as to a common modus operandi of drug sellers to stash drugs in the vicinity in which the dealer is working and place some of the drugs in the dealer’s mouth to facilitate swallowing them if detained by police. There was evidence that appellant removed drugs from his mouth in connection with his contacts with each of the three men who approached him. He also bent down at least twice near the bushes where he may have hidden his stash. Finally, when the police approached him he quickly turned around to walk away from the officers, at which time he could have swallowed the drugs. While the record does not suggest that appellant had completed selling his entire stash of drugs at that location when he was detained, no drugs were found on him or in the area in which he had been operating. While these actions are consistent with other inferences, including that appellant had no drugs left after the three transactions and turned away from the officer to try and avoid capture, the inference that appellant swallowed remaining drugs was a permissible one.
Appellant argues that the instruction should not have been given because the officers testified that they did not see appellant swallow any drugs. We do not find the lack of percipient evidence on this point dispositive and find People v. Williams (1996) 46 Cal.App.4th 1767, 1780 instructive. There, the appellate court affirmed the trial court’s CALJIC No. 2.06 instruction, finding that the police failure to uncover shorts and shoes worn by defendant during the offense supported the inference that the defendant hid the items to thwart identification.
Even if the trial court erred in giving CALJIC No. 2.06, we find that error to have been harmless in that it is not reasonably probable that had the instruction not been given a different result would have ensued. (People v. Watson (1956)46 Cal.2d 818, 836.) CALJIC No. 2.06 informed the jury that even if it found that appellant had destroyed evidence, that evidence alone was insufficient to support a guilty verdict. This made it unlikely that such evidence formed the basis of the verdict. Moreover, contrary to appellant’s perception of the evidence, it was strong and uncontroverted. Officer Levesque observed appellant through powerful binoculars, with no obstruction, receiving cash and taking items from his mouth and giving them to three individuals. He described the transactions in minute detail. The last individual who made contact with appellant was detained and possessed cocaine in the same pocket that Officer Levesque reported having seen him place the object appellant gave him.
IV. Attorney’s fees
The trial court ordered appellant to pay $6,856.45 in attorney’s fees pursuant to section 987.8. The trial court failed to determine appellant’s ability to pay, but stated: “Mr. Naya if you believe you do not have the financial ability to pay those attorney’s fees, you have the right to see the financial evaluator who will work with you in determining your ability to pay for all or any part of those attorney’s fees.”
Appellant contends that the order of attorney’s fees must be reversed because there was no evidence of his ability to pay. Respondent agrees that the attorney’s fees assessment was erroneously imposed without advance notice to appellant or evidence of his ability to pay, but argues that the matter must be remanded for a section 987.8 hearing to determine the extent of his ability to pay.
Section 987.8, subdivision (b) provides: “In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.”
We agree with both parties that this ruling was error. We agree with respondent that the remedy under these circumstances is to remand to the trial court, for it to provide the required notice and hearing to determine appellant’s ability to pay as provided in section 987.8, subdivision (b). (See People v. Flores (2003) 30 Cal.4th 1059, 1068-1069; see also People v. Viray (2005) 134 Cal.App.4th 1186, 1219 [appellate court found insufficient evidence of ability to pay and remanded for further proceedings consistent with Flores].)
V. Blakely
The trial court sentenced appellant to the upper term of five years for selling of drugs plus three years for the prior drug conviction pursuant to Health and Safety Code section 11370.2, plus three 1-year enhancements for the prison term priors pursuant to section 667.5, subdivision (b). It imposed the upper term based upon appellant having numerous prior convictions, performing unsatisfactorily while on parole and probation and his committing the offenses while on parole. The trial court stated, “It appears to the court that Mr. Naya has demonstrated that he is a habitual criminal who cannot or will not comport his behavior to the requirements of organized society.”
Appellant contends that imposition of upper term on his conviction deprived him of his right to a jury determination beyond a reasonable doubt of all facts necessary to increase his sentence beyond the statutory maximum and to due process, as set forth in Blakely. He argues that the trial court imposed the upper term based upon its finding of factors in aggravation that were never presented to the jury and which were not within the exception for prior convictions. This contention is without merit. For the reasons set forth in Black, supra, 41 Cal.4th 799, we find no constitutional violation here in the trial court’s imposition of the upper term.
In Blakely, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum, that is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,” must be determined by a jury and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 303.) The high court recently made clear that “[i]n accord with Blakely . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 549 U.S.__ [127 S.Ct. at p. 868].) In Cunningham, the United States Supreme Court held that California’s determinate sentencing law was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court rather than by a jury beyond a reasonable doubt. (Cunningham, supra, at p.__ [127 S.Ct. at p. 871].)
In Black, construing Cunningham, the California Supreme Court reasoned that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, supra, 41 Cal.4th at p. 812.) “[I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black, supra, at p. 813.)
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
The United States Supreme Court has consistently stated that the right to a jury trial does not apply to the fact of a prior conviction. (Blakely, supra, 542 U.S. at p. 301; see also Black, supra, 41 Cal.4th at p. 818.) This exception is not to be read too narrowly. (Black, supra, at p. 819.) The fact of a prior conviction includes “other related issues that may be determined by examining the records of the prior convictions.” (Ibid.) It has also been concluded that this exception relates more broadly to the issue of “‘recidivism.’” (People v. Thomas (2001) 91 Cal.App.4th 212, 221-222, cited with approval in People v. McGee (2006) 38 Cal.4th 682, 700-703.)
Applying Black here, we conclude that defendant was not deprived of his constitutional right to a jury trial by imposition of the upper term sentence. It was based on at least one aggravating factor that satisfied the Sixth Amendment. (Black, supra, 41 Cal.4th at p. 813.) The trial court found as aggravating factors that appellant had numerous prior convictions, committed the charged offense while on parole and performed unsatisfactorily while on parole and probation. The adverse criminal history factor has been explicitly held by our Supreme Court to be within the prior conviction /recidivism exception to Apprendi and its progeny. (See Black, supra, at p. 818.) The factors of unsatisfactory performance on parole and probation and having committed the charged offense while on parole also come within the prior conviction/recidivism exception. Both may be ascertained simply by examining the records of prior convictions. (Id. at p. 819.)
The issue of whether a trial court can constitutionally impose an upper term based on the fact that the defendant was on parole when the crime was committed, without a jury determination, is currently before the California Supreme Court in People v. Towne, review granted July 14, 2004, S125677.
DISPOSITION
The judgment is reversed and the cause is remanded with directions to the trial court to conduct an in camera hearing on appellant’s discovery motion consistent with this opinion. If the hearing reveals no discoverable information in Officer Levesque or Officer Ziegler’s personnel file which would lead to admissible evidence helpful to appellant’s defense, the trial court shall reinstate the original judgment and sentence which shall stand affirmed. If the in camera hearing reveals discoverable information bearing on the officer’s honesty which could lead to admissible evidence helpful to appellant in defense of the charge, the trial court shall grant the requested discovery, allow appellant an opportunity to demonstrate prejudice, and order a new trial if prejudice is demonstrated. If prejudice is not demonstrated, the trial court shall reinstate the original judgment which shall stand affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.