Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA363927, Frederick N. Wapner, William N. Sterling, Judges.
Gail Ganaja, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee, and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Appellant Michael Joseph Perez appeals from his conviction of narcotics offenses. He contends the trial court erred in denying his motion for an in camera hearing pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and in denying his motion for disclosure of the identity of a confidential informant. He also argues the prosecutor committed prejudicial misconduct in rebuttal. We find no basis for reversal and affirm.
Appellant is also known as Richard Martes or Richard Martis.
FACTUAL AND PROCEDURAL SUMMARY
Luz Bednarchik, a 20-year Los Angeles Police officer, was assigned to and working the Hollywood Narcotics unit on October 27, 2009. Another officer assigned to that unit, Officer Bucknell, told her that a man named David was a known heroin dealer, and provided her with a telephone number for David. Officer Bucknell told her to use the name Jessica if she called that number to negotiate a purchase of narcotics from David. He did not explain why she should use that name. Officer Bucknell did not testify at trial.
Fifteen minutes later, Officer Bednarchik telephoned the number and a male answered. She asked for David, and the man answered to that name. Officer Bednarchik testified that it is common for drug dealers to assume false names for narcotics transactions to protect their identity. She asked him where he was, and he asked for her identity and location. Officer Bednarchik said she was Jess, was in Hollywood, and was trying to buy “some shit” which is street vernacular for narcotics. David asked how much she wanted, and she said she had $80. He said he was in Hollywood and would meet her half way to Hollywood. Fifteen minutes later, Officer Bednarchik called David back and they agreed to meet in the area of Sunset and Vermont. David was to call her when he got to the area.
An hour later, David called Officer Bednarchik to say he was near the train station at Sunset and Vermont. She and other officers set up surveillance in the area. Officer Bednarchik, in plain clothes, went to the area on foot, equipped with a one-way transmitting device. The device is also used to provide a verbal signal to the other officers that the transaction is complete. Officer Bednarchik had $80 in prerecorded bills. She went to a market on the northwest corner of Sunset and Vermont and telephoned David to give him her location. He asked what she was wearing and said he was wearing a sweater and baseball cap. Within five minutes, she saw a man fitting that description walking with a woman through the market parking lot. She identified appellant in the courtroom as that man. Appellant approached her, made eye contact and said, “Hey, Jess.”
The trio walked a little distance away, and as they were walking, appellant introduced his female companion as Tebatha. Officer Bednarchik stopped at a pay phone and heard appellant tell Tebatha to “give it to her.” Officer Bednarchik said “here’s the money” and placed the prerecorded $80 on the pay phone booth. Tebatha took the money and handed the officer a dark-colored plastic bindle that contained eight toy balloons of various colors containing what appeared to be heroin. Balloons are a common method of packaging heroin. Appellant told “Jess” she could call him anytime and he could meet her at the same location if she needed anything else. She signaled the other officers that the sale was complete. They followed appellant and Tebatha into a store and detained them. After appellant was detained, a cell phone was recovered from him. It rang when Officer Bednarchik called the number she had used to telephone David.
When appellant got out of the police car at the station, a balloon of heroin fell out of his pant leg. Additional balloons fell out of his pants and he attempted to kick them out of the way. A total of 14 balloons containing heroin were recovered from the ground next to appellant. Appellant had $95 in cash at the time of his arrest. Appellant was arrested and charged with one count of selling, transporting, or offering to sell heroin (count I, Health & Saf. Code, § 11352, subd. (a)) and possession of heroin for sale (count II, Health & Saf. Code, § 11351).
Tebatha Colon testified in appellant’s defense. She said that she was serving a prison sentence for the drug sale to Officer Bednarchik on October 27, 2009. She testified that she had prior convictions for welfare fraud, burglary, and several for selling drugs. Colon said that she was high on drugs on October 27th, but remembered the details of the sale to Officer Bednarchik.
According to Colon, it was she rather than appellant who received the initial telephone call from Officer Bednarchick to arrange the drug sale. Appellant was with her when she received the call and when she went to the market at Sunset and Vermont to make the sale. Colon testified that she told appellant she was going to that location to go to a clothing store. She told appellant she was meeting a woman there (Officer Bednarchik) to borrow some money. Colon said she gave the officer eight bags of heroin and received $80 in return. Colon said appellant had nothing to do with the transaction. She had never seen appellant, a heroin user, sell drugs. They had been dating for three weeks at the time of the crime. At the police station, Colon invoked her right to remain silent and did not explain that appellant had nothing to do with the sale.
Appellant was convicted as charged. He admitted a prior strike conviction for a violent or serious felony and one prior narcotic conviction. The court struck remaining prior conviction allegations on the People’s motion. Appellant was sentenced to a four-year term on count I, plus three years and a concurrent three-year term on count II. This timely appeal followed.
DISCUSSION
I
Appellant sought pretrial discovery of personnel records pertaining to allegations of past misconduct regarding Officer Bednarchik’s character for honesty and integrity, pursuant to Pitchess, supra, 11 Cal.3d 531. A declaration by his counsel in support of the motion stated that appellant denied directing Colon to give Officer Bednarchik the heroin or any other involvement because Colon conducted the entire transaction. He said on information and belief that Officer Bednarchik’s statement that appellant told Colon to “give it to her” was a fabrication.
The Los Angeles Police Department opposed the motion, arguing that appellant’s claim of noninvolvement was not plausible in light of the telephone calls between him and Officer Bednarchik, his possession of balloons containing heroin at his arrest, and the officer’s statement. The trial court denied the motion, citing People v. Thompson (2006) 141 Cal.App.4th 1312 (Thompson) because appellant merely denied involvement in the sale as a basis for his motion.
Appellant contends he presented a plausible factual scenario that Officer Bednarchik committed misconduct, warranting an in camera hearing under Pitchess, supra, 11 Cal.3d 531. This argument is based on Colon’s testimony that she alone was responsible for the heroin sale, which contradicted Officer Bednarchik’s testimony about appellant’s involvement.
“[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. (Evid.Code, § 1043, subd. (b).) Good cause for discovery exists when the defendant shows both ‘“materiality” to the subject matter of the pending litigation and a “reasonable belief” that the agency has the type of information sought.’ [Citation.] A showing of good cause is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents.’ [Citation.] If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. (Chambers v. Superior Court (2007) 42 Cal.4th 673, 679.) Subject to certain statutory exceptions and limitations (see Evid.Code, § 1045, subds. (b)-(e)), ‘the trial court should then disclose to the defendant “such information [as] is relevant to the subject matter involved in the litigation.”’ (People v. Mooc (2001) 26 Cal.4th 1216, 1226, quoting Evid.Code, § 1045, subd. (a); see also Warrick v. Superior Court [(2005)] 35 Cal.4th [1011, ] 1019.)” (People v. Gaines (2009) 46 Cal.4th 172, 179.)
An accused must demonstrate that prejudice resulted from the trial court’s error in denying discovery under Pitchess. (People v. Gaines, supra, 46 Cal.4th at p. 181.) The good cause requirement “‘embodies a “relatively low threshold” for discovery’ [citation] under which a defendant need demonstrate only ‘a logical link between the defense proposed and the pending charge’ and describe with some specificity ‘how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.’ [Citation.]” (Id. at p. 182.) “[A] defendant is entitled to discover relevant information under Pitchess even in the absence of any judicial determination that the potential defense is credible or persuasive. [Citation.]” (Ibid.) “To obtain relief, ... a defendant who has established that the trial court erred in denying Pitchess discovery must also demonstrate a reasonable probability of a different outcome had the evidence been disclosed. [Citations.]” (Id. at pp. 182-183.)
A defendant’s denial of facts described in a police report may establish a plausible factual foundation for Pitchess discovery. (People v. Thompson, supra, 141 Cal.App.4th at p. 1316, citing Warrick v. Superior Court, supra, 35 Cal.4th 1011.) In Thompson, an undercover police officer approached appellant Thompson on the street. Thompson asked the officer “how much” and the officer replied “A dime.” (Id. at p. 1315.) Thompson handed the officer cocaine base and took two photocopied $5 bills from the officer. This transaction was watched by several officers from a distance of 25 to 30 feet, and two other officers monitored a wire worn by the officer and heard the verbal portion of the transaction. On arrest, the prerecorded $5 bills were found on Thompson. A declaration by defense counsel in support of a Pitchess motion stated that the officers did not recover any buy money from Thompson and that he did not offer and sell drugs to the undercover officer. Instead, Thompson claimed that he was arrested in an area where officers were doing arrests and when the officer realized he had a prior criminal history, they fabricated the account of the transaction and attributed drugs already in their possession to Thompson. (Id. at p. 1317.)
The Thompson court found this showing insufficient to warrant a hearing under Pitchess not because it lacked credibility, “but because it does not present a factual account of the scope of the alleged police misconduct, and does not explain [Thompson’s] own actions in a manner that adequately supports his defense.” (Thompson, supra, 141 Cal.App.4th at p. 1317.) Thompson did “not provide an alternate version of the facts regarding his presence and his actions prior to and at the time of his arrest.” (Id. at p. 1318.) He did not explain the facts contained in the police report. Instead, the declaration filed by defense counsel simply denied the elements of the offense charged. (Ibid.) Based on this declaration, the Court of Appeal in Thompson held that while Thompson’s factual showing was “possible, it is not plausible by any rational standard.” (Id. at p. 1315.) It pointed out that Warrick, supra, 35 Cal.4th 101 “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.” (Thompson at pp. 1318-1319.)
Thompson was followed in People v. Sanderson (2010) 181 Cal.App.4th 1334 (Sanderson). In that case, several police officers and others heard Sanderson make threats in a telephone conversation over a speaker phone. He was charged with making criminal threats. Before trial, Sanderson brought a Pitchess motion seeking disclosure of the personnel records of two officers, particularly anything relating to reports, complaints or investigations of dishonesty by the officers. In defense counsel’s supporting declaration, he said that the police report had been falsified since defendant denied making the statements attributed to him. (Id. at p. 1338.)
The Sanderson court held the trial court could reasonably conclude that the defendant failed to demonstrate sufficient good cause because he did not present a specific factual scenario that was plausible when read in light of the undisputed circumstances. The defendant did not deny making the phone call when the police were present at the house. He failed to present an alternative version of the facts regarding the nature of the telephone call. (Id. at pp. 1340-1341.)
Here, appellant argues he presented a plausible factual scenario warranting a Pitchess hearing in light of his denial of any involvement in the sale of heroin, the police report stating that only Colon handled the drugs and the buy money, and his relationship with Colon which explained his presence at the sale. He distinguishes Thompson, supra, 141 Cal.App.4th 1312, contending that his scenario was plausible, and that Colon, his girlfriend, was solely responsible for the sale.
The declaration in support of the Pitchess motion does not provide any explanation for the multiple telephone conversations between appellant and Officer Bednarchik arranging the amount, location, and time of the transaction. The general denial of involvement and statement that Colon conducted the entire transaction does not constitute a denial that appellant participated in the telephone calls with Officer Bednarchik. The trial court did not abuse its discretion in denying a hearing on the motion because appellant did not satisfy the threshold for discovery.
II
Appellant moved for disclosure of the identity of the informant who provided the telephone number used by Officer Bednarchik to arrange the drug transaction with David. He contended: “that the informant has seen the ‘David’ with whom the narcotics officers negotiated a drug transaction and therefore can exonerate by testifying that PEREZ is not the ‘David’ in question and, therefore is material to his guilt or innocence.” Based on his denial of any involvement in the drug transaction, appellant claimed he was not David. He argued: “The defendant believes that the informant, who must have seen this ‘David’ person, will be able to tell the jury that the client is not David and therefore is not the person with whom the officer arranged a drug sale.” As an alternative, he sought an in camera hearing to determine whether the identity was subject to privilege and to determine whether the need for disclosure outweighed his need for the information.
The prosecutor argued that the identity of the informant was not material because he or she was not a percipient witness to the events surrounding the drug transaction. The court denied the motion on the ground that disclosure of the informant could not possibly lead to admissible evidence.
The denial of the motion was error, appellant claims, because the informant could have supported his defense that he was not involved in the sale of drugs by testifying that he was not the man the informant knew as David. He also argues that this information would cast doubt on Officer Bednarchik’s testimony that a person who participated in a drug transaction and then was found with numerous balloons containing heroin on his person possessed those balloons for sale. Appellant contends that “since appellant was denied the opportunity to even investigate whether the informant knew him as David, the opportunity for the jury to evaluate appellant’s defense in its full context was removed.”
The identity of a confidential informant is privileged from disclosure if the necessity for preserving the confidentiality of his or her identity outweighs the necessity for disclosure in the interest of justice. (Evid. Code, § 1041, subd. (b)(2).) “[T]he prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. [Citation.]” (People v. Lawley (2002) 27 Cal.4th 102, 159.) “An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation.] The defendant bears the burden of adducing ‘“‘some evidence’”’ on this score. [Citations.]” (Id. at pp. 159-160.)
The standard of review of a trial court ruling on a motion to disclose the identity of a confidential informant is unsettled. (See People v. Gordon (1990) 50 Cal.3d 1223, 1245-1246 (Gordon), overruled on another ground in People v. Edwards (1991) 54 Cal.3d 787 [reviewing cases applying de novo and abuse of discretion standards].) In Gordon the Supreme Court concluded the trial court ruling was sound under any standard. (Id. at p. 1246.) Respondent points out that the burden on a defendant seeking disclosure of the identity of an informant is similar to the burden imposed to obtain discovery under Brady v. Maryland (1963) 373 U.S. 83 (Brady). Rulings on Brady claims are subject to independent review. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)
Respondent contends that we need not resolve this issue because appellant’s claim fails under either standard since the informant’s identity was neither material nor exculpatory. We agree.
Here, the informant was not a percipient witness to the drug transaction. When arrested with Tebatha, appellant was in possession of 14 balloons containing heroin, directly tying him to the transaction with Officer Bednarchik. Whether or not appellant was the “David” who was identified as a seller by the informant, he appeared at the location of the sale at the time arranged by the officer and was in possession of an amount of drugs suitable for sale. He was in possession of a cell phone with the number called by Officer Bednarchik to make arrangements for the sale. The prosecution’s theory on the first count for sale of drugs was that appellant aided and abetted Colon in making the sale by making the arrangements in the telephone calls with Officer Bednarchik. (People v. Alderrou (1987) 191 Cal.App.3d 1074, 1081-1082 [independent evidence of defendant’s possession and control of seized narcotics rendered testimony of informant unnecessary].) The trial court did not err in concluding there was no reasonable possibility that nondisclosure might deprive appellant of a fair trial. (Evid. Code, § 1042, subd. (d).)
III
Appellant argues the prosecutor committed prejudicial misconduct during his rebuttal argument. In closing argument, defense counsel questioned why Colon would lie by saying that appellant had nothing to do with the drug sale. He said: “The D.A. wants you to believe that because she’s known him for three weeks she would take that stand and lie and open herself up to perjury charges. [¶] Ladies and gentlemen, think about it that way, would any of you take the stand in a criminal trial and testify falsely and dishonestly to help someone that you’ve known for three weeks; is that reasonable? That is not reasonable, and that’s not what happened. Because she told the truth.”
In rebuttal, the prosecutor argued that Colon had nothing to lose by taking responsibility for the drug transaction because she had already pled guilty. He said: “She pled and this implication the D.A.’s office is going to charge her with perjury, might charge her with perjury, I’d love to see that. I’d love to see that because if we file perjury charges on every defense witness who gets up and lies on the stand, we wouldn’t get much done.” Defense counsel did not object to the argument.
Appellant contends that the prosecutor’s argument constituted misconduct because he argued facts not in evidence, i.e. that defense witnesses frequently commit perjury with impunity since they are not prosecuted for that crime due to limited prosecutorial resources. Since there was no evidence to this effect, appellant argues that the prosecutor was, in effect, testifying. By arguing that perjury charges are not brought against witnesses who lie, appellant argues the prosecutor took away an important tool for bolstering the credibility of Colon, his key witness. Appellant anticipates respondent’s forfeiture argument and contends we should consider this issue despite his failure to object because an objection and admonition would not have cured the harm.
We need not determine whether a timely objection would have cured any harm because we conclude there was no misconduct. “‘“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citations.]’ (People v. Hill (1998) 17 Cal.4th 800, 819.)” (People v. Stanley (2006) 39 Cal.4th 913, 951.) In argument, a prosecutor may refer to matters which are not in evidence, but which are common knowledge. (Id. at p. 952.).
We find no misconduct in the context of all the arguments to the jury. The prosecutor’s reference to perjury was made in response to defense counsel’s attempt to bolster Colon’s credibility by suggesting she testified despite the risk of being charged with perjury. The prosecutor’s statement, while not based on evidence, was a fair response based on general knowledge that a charge of perjury is not brought for every untruthful statement by a witness during trial. In addition, the jury was instructed that arguments by counsel were not evidence. We presume the jury followed that instruction. (People v. Zurinaga (2007) 148 Cal.App.4th 1248, 1259-1260 [prosecutor’s detailed references to September 11, 2001 tragedy found not prejudicial where jury instructed that arguments were not evidence].)
DISPOSITION
The judgment of conviction is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.