Opinion
H041647
02-07-2018
THE PEOPLE, Plaintiff and Respondent, v. MOHAMMED OMAR, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1239540)
A jury convicted defendant Mohammed Omar of possession and transportation for sale of khat, a controlled substance. He argues the trial court erred by admitting statements in violation of his Fifth Amendment privilege against self-incrimination, and he contends the prosecutor committed prejudicial misconduct in closing argument. He also argues for reversal of the judgment because the record on appeal does not include documents reviewed in camera by the trial court under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Finding no error and also no prejudice from the absent documents, we will affirm the judgment.
I. BACKGROUND
Khat is the common name for a plant grown in parts of East Africa and the Arabian Peninsula. (United States v. Mire (7th Cir. 2013) 725 F.3d 665, 667.) The plant contains two stimulants—cathinone and cathine—which the federal Drug Enforcement Administration listed as controlled substances in 1993. (21 C.F.R. §§ 1308.11(f)(3) [cathinone as Schedule I drug]; 1308.14(f)(1) [cathine as Schedule IV drug].) Khat was added to California's schedule of controlled substances as a Schedule II stimulant in 2008. (Health & Saf. Code, § 11055, subd. (d)(7); Stats 2008, ch. 292, § 1, p. 2357.) Fresh khat, which has a stronger stimulant effect than dried khat (Mire, supra, at p. 668), is chewed, and dried khat is typically consumed as tea.
On June 18, 2012, U.S. customs officials in San Francisco intercepted an air mail package from Amsterdam addressed to defendant at a storage facility in Milpitas. The package, declared as green tea with a $30 value, contained 8.74 pounds (approximately 4 kilograms) of dried khat. It and several other packages addressed to defendant were intercepted in the same manner over the next few weeks, and were turned over to a Santa Clara County narcotics enforcement task force. The investigation was assigned to Agent Wahed Magee, a City of Mountain View police detective serving on the task force.
Defendant was contacted by task force agents when visiting the Milpitas storage facility the following month, which led to the search of his storage unit, car, and apartment. Defendant had just retrieved a package from his storage unit with a shipping label identical to that on the June 18 package. The newly received package was in his car, and two large blue bags containing khat were in the trunk. Defendant was carrying over $2,400 currency in small denominations, along with receipts for two $2,000 cash deposits and a $400 cash deposit to three different bank accounts.
The storage unit contained approximately 400 boxes of packaged tea bags (50 count) imported from Kenya, covered in dust. Task force agents found over $12,000 in $100 bills in a duffel bag under a blanket in defendant's bedroom. Several packing slips from international shipments were found in defendant's car and apartment.
Defendant was arrested and interviewed at the police station by Agent Magee. In that interview, which was video recorded, defendant admitted to importing and selling dried khat for over a year, on average four kilograms (8.8 pounds) per week. He paid $400 per four-kilogram box and sold the contents for $800 or $900. He admitted knowing that fresh khat had been outlawed in the United States in the early 1990s, but he said he had been unaware that dried khat was also illegal until he was contacted by federal agents about the recent shipments.
Defendant insisted during that interview that he had not told Agent Magee at the storage facility that the money in his apartment was from selling khat. He acknowledged telling Agent Magee he had money at home, but said he did not mix his money, and he never said that money was from selling khat. He admitted that the cash in his pocket was from selling khat, and half that money was owed to his distributor. He explained that people where he came from kept their money at home, and the money in his bedroom was money he had saved working in the United States until 2008.
Defendant was charged with transportation of khat (Health & Saf. Code, § 11379, subd. (a); count 1), and possession for sale of khat (Health & Saf. Code, § 11378, count 2).
Defendant was charged in the same complaint with possessing khat for sale a year earlier, in April 2011. That count was dismissed before trial after the court ruled that the package of khat supporting that count had been illegally seized by California Department of Agriculture inspectors.
A. Pre-Trial Proceedings
Defendant moved under Pitchess v. Superior Court to obtain discovery related to Agent Magee's credibility, asserting that Agent Magee had misrepresented in a police report that defendant admitted selling khat and having money from khat sales. The court denied the motion after reviewing documents from Agent Magee's personnel file in camera.
Defendant moved under Penal Code section 1538.5 to suppress all evidence obtained as the result of unlawful searches of the package intercepted on June 18, the storage unit, and defendant's car, apartment, and cell phone. At the suppression hearing, Agent Magee testified that he and his partner arrived at the storage facility in a marked patrol car and in SWAT uniforms after calling the Milpitas Police Department to have defendant stopped. Agent Magee informed defendant that he was not under arrest. Agent Magee asked defendant if he knew why he (Agent Magee) was there and defendant said he knew it was regarding the khat. Agent Magee did not draw his gun. He asked defendant to step away from the group to talk, which at that point included his partner, Officer Pankratz from the Milpitas Police Department, and possibly Agent White, who arrived shortly after Agent Magee. Defendant told Agent Magee he had been selling khat and some of the money in his pocket was from those sales. Agent Magee asked defendant if there was money at his home, and defendant said there was—some from selling khat and some that belonged to his sister. Defendant consented to an automobile search, and more khat was found in the back of the car and the trunk. Defendant consented to a search of the storage locker and his residence.
In denying the motion to suppress, the court ruled that U.S. customs agents had lawfully intercepted the package on June 18, defendant's detention at the storage facility was lawful and did not constitute a de facto arrest, defendant had lawfully consented to searches, Agent Magee had probable cause to arrest defendant after he admitted to importing and selling khat, and the search of defendant's cell phone was reasonable under then-existing law.
After receiving additional testimony, the court denied defendant's motion to exclude statements he made to Agent Magee. The court found that the statements made at the storage facility were not the result of custodial interrogation because defendant was not in custody, and the statements at the police station were voluntarily made after defendant had been Mirandized.
B. TRIAL
1. The Prosecution's Case
Agent Magee testified regarding the June 2012 intercepted package, the khat found in defendant's car, and the additional intercepted packages received from the San Jose Police Department. Evidence was presented that the content of the first intercepted package had been chemically tested and identified as khat, and Agent Magee testified that all the packages (most of which weighed approximately 10 pounds) appeared to contain the same plant substance.
Agent Magee described the cash and deposit slips defendant was carrying, the packing slips in defendant's car and apartment, the cash in defendant's apartment, the boxes of Kenyan tea bags in the storage unit, and defendant's admissions to selling khat. Specifically, defendant had told Agent Magee at the storage facility that he was unemployed, he had been selling khat to people from his country to make ends meet, the money in his pocket was from selling khat, and he had more money at home from selling khat. Video excerpts of defendant's police station interview were played for the jury showing defendant admitting to selling khat, including details related to the frequency and size of the shipments, what he paid for the khat, and how much he was able to sell it for.
The prosecution introduced text messages from defendant's phone regarding the status of shipments, including package tracking numbers and defendant's storage unit address, requests that money be deposited into specific bank accounts, and deposit confirmations. Evidence was presented that defendant had been receiving international packages at the storage facility similar to the box in his car once or twice a week for approximately a year.
Agent White, an expert in the possession and distribution of khat, testified that khat is grown in East Africa and sold to distributors in Europe (where it is legal) for about $200 per kilogram. From there the khat is sold to distributors in the United States for between $250 and $300 per kilogram, and the American distributor is often fronted the product. He testified that drug trafficking is a liquid business and large quantities of U.S. currency are commonly found in dealers' homes. He opined that a person who admits to selling khat, who has exchanged text messages related to the shipment process, money deposits, product orders, money transactions, and product quality, and who carries and holds large sums of U.S. currency, is involved in trafficking and selling khat.
2. Defendant's Testimony
Defendant admitted at trial to importing khat. But he testified it was for personal use only and he denied selling it. Defendant, who emigrated from Ethiopia in 1979, had used fresh khat in his home country before coming to the United States, and started consuming khat tea in 2011 to counter physical weakness from kidney dialysis. In 2012 he was drinking khat tea twice daily, and a box of khat would supply tea for one week. He paid about $250 per box, and stored it at his apartment in a balcony closet away from heat.
Defendant testified he ordered 45 kilograms (99 pounds) of khat in May 2012 from Hassen Fereha, a woman he did not know personally, because he was not always able to buy it. The only package he received from that shipment was the one Agent Magee took from his car, which he had just retrieved from the storage unit. He had ordered khat from Fereha in 2011, but never received that shipment and denied knowing that it had been seized by the California Department of Agriculture.
In a June 26 text message, Fereha wrote "2 more today's so total 6 medium boxed rite?" Defendant responded with three tracking numbers. The next day Fereha texted defendant an account number followed by "$2000." That account number matched the number on one of the deposit receipts found in defendant's wallet. The receipt was for a $2,000 cash deposit made on June 28.
Defendant was unemployed in 2012. He derived income from importing and selling Ethiopian goods such as DVDs, incense, and food items, but that was not a consistent business. The Kenyan tea bags in his storage unit were what remained of a 20-box shipment delivered in 2011. The cash he was carrying when he was arrested was from selling that tea, not khat, and he owed that money to the tea supplier because he had received the tea without paying for it.
He denied telling Agent Magee at the storage unit that he sold khat, and that the money he was carrying was from selling khat. At the police station, defendant told Agent Magee he was selling khat, even though he wasn't, because Agent Magee had interrogated him for 45 or 50 minutes at the storage facility and had asked "leading questions" suggesting he was selling khat. So defendant decided to "agree with" and "just [go] along with" what Agent Magee was saying.
The $12,000 at his home was not proceeds from selling khat, but had been pooled by a group of 12 Ethiopians. As treasurer of the group, called an "equib" and formed to help its members with financial difficulties, defendant collected money weekly, and after four weeks the money was given to whomever in the group had financial need.
C. Verdict and Sentencing
The jury found defendant guilty on both counts. The court suspended imposition of sentence, placed defendant on probation, which included the condition that he serve four months in county jail. The court told defendant at sentencing that it had "some real reservations" about his testimony related to his interview, and it had concluded that defendant had been untruthful in portions of his testimony.
II. DISCUSSION
A. MIRANDA ISSUES
Miranda advisements are required when a person is subject to "custodial interrogation." (Miranda v. Arizona (1966) 384 U.S. 436, 444 (Miranda).) "[C]ustodial interrogation" refers to "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Ibid.) Custodial interrogation does not occur where an officer detains a suspect for investigation and the questioning is limited to identifying the suspect or confirming or dispelling the officer's suspicions. (People v. Farnam (2002) 28 Cal.4th 107, 180; People v. Davidson (2013) 221 Cal.App.4th 966, 970.) Indeed, the Miranda opinion itself permits "[g]eneral on-the-scene questioning as to the facts surrounding a crime." (Miranda, at p. 477.) "Miranda warnings are not required during the course of a brief detention unless the suspect is placed under restraints normally associated with a formal arrest." (People v. Pilster (2006) 138 Cal.App.4th 1395, 1404.)
We defer to the trial court's factual findings supported by substantial evidence, but we independently determine whether appellant was in custody for Miranda purposes. (People v. Leonard (2007) 40 Cal.4th 1370, 1400.) "When there has been no formal arrest, the question is how a reasonable person in the defendant's position would have understood his situation." (People v. Moore (2011) 51 Cal.4th 386, 395.) In People v. Lopez (1985) 163 Cal.App.3d 602, this court listed various objective indicia of custody for Miranda purposes related to investigatory detentions: (1) whether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning. (Id. at p. 608; accord People v. Forster (1994) 29 Cal.App.4th 1746, 1753.)
1. The Storage Facility Detention
Defendant argues that his statements at the storage facility were inadmissible because he was in custody and interrogated by Agent Magee without Miranda warnings. Defendant was initially detained by Officer Pankratz of the Milpitas Police Department, and later detained and questioned by Agent Magee as part of a lawful investigatory detention, the circumstances of which do not objectively manifest a custodial arrest. As the trial court noted, defendant was not restrained or handcuffed. The detention occurred at a public location, the wait for Agent Magee was casual, no weapons were drawn or displayed in a threatening manner, and no threats or orders were directed at defendant. Agent Magee introduced himself upon his arrival, told defendant he was not under arrest, and asked to walk with him away from the other officers who were present. Agent Magee explained: "Basically, I talked to him real quick about what was going on." He asked defendant whether he knew why he (Agent Magee) was there, and defendant answered that it was regarding the khat. Defendant told Agent Magee some of the cash he was holding was from selling khat and there was more money at his residence. The questioning was brief and related to the detention.
Agent Magee and Officer Pankratz had differing recollections as to whether defendant had been handcuffed. Officer Pankratz testified that he had not handcuffed defendant, and Agent Magee testified that defendant was handcuffed, and he removed the handcuffs. The trial court found that defendant was not handcuffed, noting that Officer Pankratz's testimony reflected excellent recall and was consistent with his testimony that defendant was cooperative and provided identification, and that he was provided no information from dispatch which would have warranted handcuffing. We will defer to that finding. But even if defendant had been handcuffed, that would not change our view as to the status of the detention. As the trial court also noted, assuming defendant was handcuffed, he was immediately uncuffed by Agent Magee and told he was not under arrest.
Although defendant waited 30 to 40 minutes for Agent Magee to arrive, the delay was reasonable under the circumstances, and it did not transform the detention into a de facto arrest. (People v. Forster, supra, 29 Cal.App.4th at p. 1754 ["it is the totality of circumstances that is relevant; 'no one factor is dispositive' " in determining custody for Miranda purposes].) Based on the totality of the circumstances, we conclude defendant was not "subjected to the coercive police-dominated atmosphere which was Miranda's concern" (People v. Lopez, supra, 163 Cal.App.3d at p. 609), and he was not in custody when questioned.
Defendant argues the detention was prolonged, in an area not exposed to public view, and that he was confronted by several officers. Given that defendant was told a police officer from another agency was in route (Agent Magee needed to drive from Mountain View to Milpitas) and that the wait was casual, the duration of the detention alone does not translate into a formal arrest. Defendant was detained in daylight in a parking lot next to a public street by one officer. Although a second officer joined the wait, there is no evidence that he made contact with defendant. And while Agent White arrived soon after Agent Magee and his partner, there is no evidence of any direct communication with defendant aside from Agent Magee's brief questioning, nor evidence of a confrontational atmosphere.
Defendant argues that a reasonable person in his situation would not have felt free to leave, given that Officer Pankratz had activated his lights, blocked the storage facility driveway with his patrol car, pat-searched him, and asked him for identification. But the "free to leave" inquiry determines whether a person has been seized within the meaning of the Fourth Amendment. (People v. Wilkins (1986) 186 Cal.App.3d. 804, 809.) The Fifth Amendment inquiry relating to an investigatory detention, relevant here, is "whether a reasonable person would have understood that his situation was comparable to a formal arrest." (People v. Pilster, supra, 138 Cal.App.4th at p. 1406.) As we have explained, the circumstances of the investigatory detention here were not tantamount to an arrest.
2. The Police Station Interview
a. No two-step interrogation technique was used
Defendant argues that statements he made at the police station were inadmissible because they were the product of a deliberate two-step interrogation technique prohibited by Missouri v. Seibert (2004) 542 U.S. 600 (Seibert). In Seibert, the suspect was questioned at the police station after a formal arrest and without Miranda warnings. (Id. at pp. 604-605.) After the suspect made an admission, the interrogation ceased for about 20 minutes. The suspect was then given Miranda warnings, after which she was confronted with her pre-warning statements and made further incriminating statements. (Id. at p. 605.) The investigating officer had testified that he had made "a 'conscious decision' to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question 'until I get the answer that she's already provided once.' " (Id. at pp. 605-606.) A plurality of the high court found the Miranda warning was rendered ineffective by the two-step interrogation strategy because the circumstances of the interrogation challenged the "comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect's shoes would not have understood them to convey a message that she retained a choice about continuing to talk." (Id. at p. 617.)
The record here is devoid of any suggestion that a two-step interrogation process similar to the process in Seibert occurred. No evidence was presented that defendant was subjected to protracted or strategically repetitive questioning at the police station. We see no impropriety here in returning during the police station interview to fundamental questions touched on during the storage facility detention.
b. Defendant's statements were voluntary
Defendant argues that his statements at the police station were involuntary when analyzed under Oregon v. Elstad (1985) 470 U.S. 298 (Elstad) because his earlier statements at the storage facility were coerced. In Elstad, police questioned a suspect at his home before executing an arrest warrant, and the prosecution conceded on appeal that the suspect had made an admission in custody without the prescribed Miranda warnings. (Id. at pp. 301-302.) The suspect was transported to the police station where, about an hour later, he was Mirandized, interviewed, and he provided a more detailed written statement. (Ibid.) The Elstad court held that the statement was not tainted by the earlier admission: "[A] suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." (Id. at p. 318.)
Defendant argues he has not forfeited this claim by failing to raise it in the trial court, noting that the trial court had made findings as to the voluntariness of his statements at the police station. The Elstad argument defendant makes on appeal, however, hinges on the voluntariness of his statements at the storage facility, a question that was not raised in the trial court. We address the argument on the merits to obviate analysis of whether trial counsel was ineffective for failing to raise voluntariness of the storage facility admissions to the trial court.
We independently review the voluntariness of a confession, deferring to the trial court's findings supported by substantial evidence as to the circumstances surrounding the confession. (People v. Massie (1998) 19 Cal.4th 550, 576.) Courts look to the totality of the circumstances to determine the voluntariness of a confession, considering factors such as coercion; the length, location, and continuity of the interrogation; and the defendant's maturity, education, and physical and mental health. (Ibid.)
The trial court found no intimidation, deception, or inappropriate police tactics were used at the storage facility and no coercive tactics were utilized to overcome defendant's will. Those findings are supported by the record. Defendant was not questioned by the Milpitas police officers, and Agent Magee spoke with defendant for "[m]aybe five minutes" at that location, positing only a few questions about which defendant was forthcoming. Agent Magee engaged defendant in conversation at his apartment for "maybe another five minutes of actual talking," and there is no evidence of any conversation at the police station before the interview started.
Defendant relies on his trial testimony to argue that his statements at the storage facility were coerced, but that testimony was not before the court when it ruled in limine on the admissibility of his statements. Nor is counsel's declaration in support of defendant's Pitchess motion a substitute for absent testimony.
Defendant argues that his video-recorded police station interview suggests the use of inappropriate interrogation techniques at the storage facility. In the police station interview, defendant insisted he had not told Agent Magee at the storage facility that the money at his home was from selling khat. That exchange does not demonstrate coercion. To the contrary, when defendant pressed, "No - no - no, I didn't - I didn't say that," Agent Magee responded "You didn't?" and allowed defendant to expound, asking how he got the money "if I'm wrong in what I heard from you ... ." He let defendant explain himself, interjecting with little more than "Mm-hm" and "Okay." Overall, the video recording shows defendant openly admitting to selling what he had understood was a legal substance, and Agent Magee pressing defendant on his claim of having only recently learned that dried khat was illegal.
There is no evidence that defendant's age, health, or country of origin in any way affected the voluntariness of his brief initial exchange with Agent Magee, or that Agent Magee's questioning mimicked psychologically debilitating interrogation strategies, as defendant argues. The statements defendant made at the storage facility were not the result of an overborne will (People v. Massie, supra, 19 Cal.4th at p. 576), and they did not undermine the voluntariness of defendant's police station interview under Elstad.
B. ALLEGED PROSECUTORIAL MISCONDUCT
Defendant argues the prosecutor committed prejudicial misconduct during supplemental argument in response to a jury inquiry that arose during deliberations. The jury sent the court a note stating that it was equally divided between guilty and not guilty on both counts, and that the undecided issue was defendant's intent to sell. Over defendant's objection, the court provided each side 10 minutes of additional argument to address the jury's concern. The prosecutor began by explaining: "When we see someone selling drugs, that's what we charge them with. But when we find someone with drugs like [defendant] and they are not selling it at that exact moment, we could either charge them with simply possessing those drugs or possessing those drugs with an intent to sell. ... [¶] ... So that means that the intent to sell in these two charges could be at any time in the future. It doesn't have to be at that exact moment, and he could be -- he doesn't have to actually have sold down the road. It just means he had to have that intent."
After arguing that defendant's intent to sell was shown by both direct and circumstantial evidence, the prosecutor addressed the discrepancy between defendant's recorded statements and his in-court testimony: "How do you know when [defendant] is telling the truth? Well, he had every reason to tell the truth back then because he was caught red-handed. He was caught with kilos and kilos of drugs. And his testimony in court, why is it unbelievable? Because he's had two years to prepare for this moment." Defense counsel objected, and the prosecutor continued, "He's [had] the benefit of an attorney." Defense counsel objected again. The court sustained the objection and directed the prosecution to continue. The prosecutor argued that defendant had time to think about what to say at trial, such as importing khat for personal use only, having doctor approval for using khat, and holding cash in trust for others, without corroborating any of those claims.
1. Standard of Review
A prosecutor commits misconduct by using " ' "deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " (People v. Clark (2011) 52 Cal.4th 856, 960.) In closing argument, "[p]rosecuting attorneys are allowed a 'wide range of descriptive comment' and their ' " 'argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.' " ' " (People v. Martinez (2010) 47 Cal.4th 911, 957.)
Misconduct under state law is reviewed for a reasonable probability of a more favorable outcome to defendant but for the misconduct. (People v. Riggs (2008) 44 Cal.4th 248, 298.) "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Morales (2001) 25 Cal.4th 34, 44.) Reviewing courts " ' "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Brown (2003) 31 Cal.4th 518, 553-554.)
Misconduct by a prosecutor that does not result in the denial of a defendant's specific constitutional rights is reversible error under the federal Constitution only when the challenged action " ' "so infected the trial with unfairness as to make the resulting conviction a denial of due process." ' " (People v. Riggs, supra, at p. 298.)
2. Forfeiture
"As a general rule, ' "[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety." ' " (People v. Centeno (2014) 60 Cal.4th 659, 674.) Although defendant objected during the prosecutor's argument, he did not articulate a basis for the objections, nor did he request an admonition. Thus, he has forfeited this claim. We will address his argument, however, to avert the claim that trial counsel was ineffective for failing to request an admonition.
3. Merits
Defendant argues "the prosecutor's statement implied that, based on his intimate knowledge of the case and his experience with the facts at issue, he personally knew that defendant's testimony was fabricated." There is nothing improper in the prosecutor arguing that defendant was lying on the stand. " 'The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence ... [and] to argue on the basis of inference from the evidence that a defense is fabricated.' " (People v. Boyette (2002) 29 Cal.4th 381, 433.) Here, the prosecutor argued, not based on purported intimate knowledge of the case but based on direct and circumstantial evidence already before the jury, that defendant fabricated a defense.
Similarly, the prosecutor's comments did not attack the integrity of or cast aspersions on defense counsel. The argument was directed at defendant's opportunity to fabricate a defense, not at any malfeasance on the part of his attorney. The argument does not suggest that defense counsel knew defendant was lying, much less imply that defense counsel was violating ethical standards, as defendant asserts.
Defendant's final argument—that the prosecutor's statement was an egregious and reprehensible comment on his right to counsel—also lacks merit. While the reference to defendant benefiting from the assistance of counsel may have been objectionable, it was a brief comment made in the context of a larger argument focused on defendant's credibility. Nor is it reasonably likely that the jury reached guilty verdicts because of the comment and not based on the evidence: Defendant admitted to buying and selling khat, and he identified at least some of his money as direct proceeds from the sale of the substance. The quantity and cost of the khat defendant was importing and the manner in which he was receiving the packages was inconsistent with personal consumption, particularly by someone who was unemployed. Defendant's testimony that his police station confession was fabricated to appease Agent Magee's purported heavy handedness is belied by the demeanor of both Agent Magee and defendant during the video-recorded interview, and his claim that the cash in his pocket was from selling Kenyan teabags fronted to him 15 months earlier was undermined by the text messages showing that he was depositing cash into bank accounts to pay for recent shipments of khat. C. PITCHESS ISSUES
Defendant challenges the denial of his motion to discover information in Agent Magee's personnel file related to credibility. Because the record of the in camera Pitchess hearing is maintained under seal, defendant requested in his opening brief that this court independently review those materials to determine whether any abuse of discretion occurred, a practice endorsed by our Supreme Court in People v. Myles (2012) 53 Cal.4th 1181, 1209.
According to the sealed transcript of the Pitchess hearing, the custodian of records for the Mountain View Police Department produced six documents which the trial court reviewed and determined were not relevant to the current litigation. On our own motion, we returned the matter to the trial court to augment the record with those documents, causing the trial court to hold a hearing where the custodian of records produced two of the six documents previously produced at the Pitchess hearing and informed the trial court that the remaining four documents had been destroyed as part of the department's standard procedure to destroy such records after five years. We augmented the record with the two documents transferred to us under seal, and denied defendant's motion to direct the custodian of records to reconstruct the destroyed records. In supplemental briefing defendant argues that he has been deprived of an adequate record for review, and seeks reversal on that ground. The Attorney General concedes that the documents reviewed were not described at the Pitchess hearing with sufficient detail for this court to meaningfully review the trial court's rulings, but he argues that defendant cannot show prejudice from the record omissions.
The trial court certified to us that it had no independent recollection of the records reviewed in camera at the Pitchess hearing in 2014, but it was able to match the two records produced by the custodian of records in 2017 based on its description of those records at the 2014 hearing.
1. Abuse of Discretion Review
The Supreme Court in People v. Mooc (2001) 26 Cal.4th 1216 (Mooc) directed trial courts to preserve some record of the documents examined in camera to facilitate appellate review of the denial of a Pitchess motion: "The trial court should ... make a record of what documents it examined before ruling on the Pitchess motion. ... If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined." (Id. at p. 1229.) The Mooc court explained that documents clearly irrelevant to a Pitchess request need not be presented to the trial court for an in camera review, but the custodian should state on the record what records it deemed irrelevant or otherwise nonresponsive to the Pitchess motion. (Id. at p. 1229.)
The custodian of records testified at the Pitchess hearing that he had access to and searched for citizen complaints and internal investigations involving Agent Magee. The trial court adhered to the directive in Mooc identifying the responsive documents by date of incident, date action initiated, and type of action (a policy or procedure inquiry, a personnel complaint, or an internal investigation). We are satisfied on this record that the trial court did not abuse its discretion by limiting its in camera review to the documents produced. (People v. Winbush (2017) 2 Cal.5th 402, 424 [Pitchess rulings are reviewed for abuse of discretion.].) We also find no abuse of discretion in denying disclosure on relevance grounds of two documents included in the augmented record and of two documents described with sufficient particularity at the Pitchess hearing to establish their irrelevance.
We accept the Attorney General's concession as to the two remaining documents, however, because, while the descriptions of the documents comport with the directive given in Mooc, they lack sufficient detail to provide meaningful appellate review under People v. Townsel (2016) 63 Cal.4th 25 (Townsel), where the Supreme Court concluded that the record there lacked "specification of either the materials the trial court reviewed in ruling on the Pitchess motion or any particularized description of them" to adequately permit meaningful appellate review. (Id. at p. 69.) The court in Townsel determined, for consequence of the appeal, that an inadequate Pitchess record is assessed for prejudice. (Id. at p. 70.)
2. Prejudice Review
Defendant argues he is entitled to reversal of the judgment because the record omission has denied him the right to a constitutionally adequate record on appeal. He relies on People v. Moore (1988) 201 Cal.App.3d 51 (Moore), where the court addressed whether a new trial was warranted under Penal Code section 1181 because the court reporter's stenographic notes were stolen and she was unable to produce a reporter's transcript of the defendants' closing arguments. The Moore court stated that a new trial was in order "[w]hen the record contains such massive omissions that the reviewing court cannot decide the defendant's challenges to his conviction," and the test is " 'whether in light of all the circumstances it appears that the lost portion is "substantial" in that it affects the ability of the reviewing court to conduct a meaningful review and the ability of the defendant to properly perfect his appeal.' " (Moore, at p. 57.) In assessing whether the lost documents were substantial, the Moore court concluded "that the problem is subject to harmless error analysis," and it upheld the defendants' convictions in the absence of prejudice. (Id. at p. 58.)
Penal Code section 1181 provides that a new trial may be granted "in the following cases only," including "[w]hen the right to a phonographic report has not been waived, and when it is not possible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule ... because of the loss or destruction, in whole or in substantial part, of the notes of such reporter ... ." (Pen. Code, § 1181 (9).) --------
We conclude that Townsel, and cases related to prejudice arising from discovery errors, govern our review of the issue at hand. Moore preceded Townsel by nearly 30 years, and it involved the right to a record of trial proceedings, not the record of an in camera Pitchess hearing. But more importantly, the Supreme Court in Townsel has rejected the notion that a defendant who is deprived of meaningful appellate review of a trial court's Pitchess ruling because of lost or destroyed documents is entitled to reversal of the judgment without a showing of prejudice. (Townsel, supra, 63 Cal. 4th at pp. 69-70.) The court in Townsel recognized that state law error is deemed harmless under People v. Watson (1956) 46 Cal.2d 818 (Watson) if the defendant fails to show a reasonable probability of a more favorable outcome but for the error. (Townsel, at p. 70.) It did not apply the Watson standard because the missing documents in Townsel were relevant to the penalty phase in his death penalty trial and state law error in the penalty phase of a capital trial is reviewed under a more stringent standard akin to that in Chapman v. California (1967) 386 U.S. 18. (Townsel, at p. 70.)
Defendant contends that any prejudice should be assessed under the more stringent Chapman standard for violation of his federal constitutional rights. But the erroneous exclusion of some evidence concerning a defense does not impair a defendant's due process right to present a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1103.) Further, the cases relied on by defendant, Draper v. Washington (1963) 372 U.S. 487, Britt v. North Carolina (1971) 404 U.S. 226, and Griffin v. Illinois (1956) 351 U.S. 12, are distinguishable as they involve an indigent defendant's right under the equal protection clause to a reporter's transcript to prepare an appeal. In contrast, the documents omitted from the record here were not the reporter's transcript of proceedings, but documents that could have been preserved for purposes of appellate review had defendant asked the trial court to order the custodian of records to retain the documents, as was done in Mooc. (Mooc, supra, 26 Cal.4th at p. 1223.) The law enforcement agency maintained those documents for at least five years as required under Penal Code section 832.5, subdivision (b), and their apparently routine destruction does not constitute federal constitutional error.
We apply the Watson standard here because the Supreme Court has settled that an accused must demonstrate prejudice resulting from a trial court's error in denying discovery (People v. Memro (1985) 38 Cal.3d 658, 684, disapproved on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2), and it has applied the Watson standard to the denial of a Pitchess motion based on the defendant's failure to show good cause for an in camera document review. (People v. Samuels (2005) 36 Cal.4th 96, 110.) In our analysis based on the state of this record, we will assume that defendant could have used two citizen complaints about false reports to impeach Agent Magee's credibility. (Townsel, supra, 63 Cal. 4th at pp. 70-71.)
3. Harmless Error Analysis
Defendant argues that he satisfies the prejudice standard under Watson—that it is reasonably probable the trial court would have granted his motion to suppress his statements made at the storage unit and the police station had Agent Magee's credibility been impeached with citizen complaints of false reports. But defendant argued in the trial court that his statements violated Miranda based on a prolonged detention at the storage facility, and defendant did not challenge Agent Magee's testimony related to the indicia of custody. Aside from the statements he made to Agent Magee, defendant does not identify any facts related by Agent Magee at the pre-trial hearings that in his view are untruthful. Further, the details of the initial detention were provided by Officer Pankratz, who waited with defendant while Agent Magee made his way to the storage facility. We see no reasonable probability that the trial court would have viewed defendant's custody status at the storage unit differently had Agent Magee's credibility been impeached.
Nor is it reasonably probable that the trial court would have ruled differently on the voluntariness of defendant's police station admissions had Agent Magee been impeached with citizen complaints. The recorded interview does not show defendant capitulating to a manipulative or heavy-handed police officer. The video shows defendant voluntarily impressing upon Agent Magee two points: He denied making statements at the storage unit attributing the cash in his apartment to selling khat, and he emphasized he had only recently learned that dried khat was illegal in the United States. At the same time, the video shows defendant readily admitting to selling khat to make ends meet.
We also find no reasonable probability of a jury verdict more favorable to defendant had Agent Magee been impeached with citizen complaints, and on this record we conclude that defendant received a fair trial comporting with due process. Ultimately, Agent Magee's credibility was not central to the prosecution's case given defendant's admissions at the police station to selling khat, corroborated by the bags of khat in the trunk of his car, the cancelled packing slips in his car, the text messages on his phone, the approximately $2,400 cash he was carrying when arrested, and the $12,000 cash in his bedroom. But defendant's credibility was central to his defense, and it was effectively undermined by inconsistencies and implausibility, including his testimony that the $2,400 was from selling Kenyan tea bags, he consumes one package (10 pounds) of khat tea per week, and he had received only one shipment of khat in 2012.
D. CUMULATIVE ERROR
Finding no trial court error and no prejudice resulting from the destruction of two records of citizen complaints directed at Agent Magee, we reject defendant's argument that the cumulative impact of trial court error compels reversal of the judgment.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Premo, Acting P. J. /s/_________ Mihara, J.