Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BA308051 Judith Champagne and Curtis B. Rappe, Judges.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Carlos E. Pimentel appeals from the judgment entered after a jury convicted him of possession for sale of various narcotics. Pimentel’s sole contention on appeal is he was entitled to a Pitchess review (People v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) to determine whether there were discoverable complaints against the arresting officers. We agree that a limited remand is necessary for an in camera review of Pitchess material.
FACTUAL AND PROCEDURAL BACKGROUND
1. Charges and Summary of Evidence Presented at Trial
Pimentel was charged by amended information with possession for sale of cocaine base (Health & Saf. Code, § 11351.5) (count 1), cocaine (§ 11351) (count 2), methamphetamine (§ 11378) (count 3), and marijuana (§ 11359) (count 4). He pleaded not guilty and was tried by a jury. After the jury deadlocked on all four counts, the trial court declared a mistrial. Pimentel was then retried.
Undesignated statutory references are to the Health and Safety Code.
a. Prosecution evidence
On the evening of August 22, 2006, Officer Annette Razo and Detective Erik Armstrong of the Los Angeles Police Department were conducting an undercover narcotics surveillance at the corner of Slauson and Duarte Streets in Los Angeles. From their unmarked police car they saw Pimentel sitting in a chair outside a motor home that was parked on the street. Using binoculars, Officer Razo watched Pimentel go in an out of the motor home several times over a 15-minute period. She then noticed a dark sedan pull up next to the motor home. The driver emerged and handed Pimentel some money. Pimentel went to the back of the motor home, reached through a window and retrieved a small item that he gave to the driver.
Officer Razo concluded that a narcotics transaction had occurred and signaled her back up officers for assistance. Back-up officers arrived and were joined by Officer Razo and Detective Armstrong. As the officers approached, Pimentel left his chair, went to the back of the motorhome, and tossed a pill bottle through the window. Detective Armstrong looked through the window and saw an open-shoe box on a bed. The shoe box contained what appeared to be a variety of narcotics. Detective Armstrong and another officer recovered the shoe box by climbing through the window to avoid two hostile dogs chained at the motorhome entrance. Inside the shoe box were a large plastic baggie, two pill bottles, 65 small baggies containing marijuana, a pay/owe sheet, and $89 in cash. The large plastic baggie contained 40 small baggies of crystal methamphetamine. One pill bottle contained nine small baggies of powder cocaine, and the other pill bottle contained 10 small baggies of rock cocaine. Officers also recovered a handgun. Pimentel admitted he owned the handgun and the motorhome; both were registered to him. Pimentel denied the narcotics were his.
While detained by police, Pimentel was approached by a friend (apparently not Gonzalez) outside the motorhome. Officer Razo asked if Pimentel wanted his friend to care for the dogs in his absence. In response, Pimentel asked the officers to give the friend the motorhome keys they had found in Pimentel’s pants pocket.
b. Defense evidence
Pimentel testified in his own defense that for the past year he had allowed Juan Gonzalez, a transient, to sleep in his motorhome on the condition that Gonzalez move it weekly on street cleaning days. Pimentel worked at night as a security guard, and he occasionally slept in his motorhome as he did on the night of August 21, 2006. When Pimentel awakened the next morning, Gonzalez was already gone. Pimentel locked the motorhome and left. That evening, Pimentel returned to pick up his handgun for his job. The motorhome was locked, and Gonzalez, who had the only key, was not there.
While Pimentel waited for Gonzalez to return, police arrived, and asked him about the motorhome. Pimentel said the motorhome was his and he was waiting for Gonzalez. The officers searched his motorhome, retrieved the shoe box and arrested him without explanation. Pimentel testified he did not see the shoe box on the bed, had no knowledge of any narcotics in the motorhome, never spoke to anyone while he was waiting for Gonzalez, and never handled or tossed a pill bottle when the officers approached. Pimentel further testified he had police give his friend his car keys, not the keys to his motor home.
2. The Jury’s Verdict and Sentencing
At the conclusion of the second trial, the jury convicted Pimentel on all four counts of possession for sale. The trial court imposed a state prison sentence of three years, consisting of the three-year lower term on count 1 (cocaine base), plus the lower terms of two years on count 2 (cocaine), 16 months on count 3 (methamphetamine) and 16 months on count 4 (marijuana) to be served concurrently to the term imposed on count 1 for possession for sale of cocaine base.
3. Pitchess Motion
Prior to the second jury trial, Pimentel made a motion for discovery of Pitchess material seeking personnel records for Officer Razo and Detective Armstrong (the arresting officers) relating to acts of racial, ethnic and gender bias, excessive force or coercion, dishonesty or moral turpitude, false arrest, fabrication of probable cause or charges, planting evidence, and illegal search and seizure. In support of the motion, defense counsel filed a declaration stating he was informed and believed that on the date of his arrest, Pimentel had no “rock cocaine or any cocaine whatsoever on his person;” he never engaged in the sale of cocaine; he “was waiting to enter the motorhome to retrieve his personal property,” and he “did come into an unknown individual [sic] before his arrest.” Counsel further asserted that the arresting officers fabricated their claim that Pimentel had engaged “in an illegal drug transaction,” prepared a false police report to that effect, and intended to provide perjured testimony at trial. Attached to the motion were copies of the police (arrest and property) reports.
The police report and trial testimony reflects that two Los Angeles Police Department officers with the surname Razo were involved in Pimentel’s arrest. However, Officer Annette Razo, as one of the arresting and reporting officers, was the subject of the Pitchess motion, as was her partner Officer Erik Armstrong.
In written opposition, the city attorney argued in part the declaration of defense counsel was over broad and insufficient to establish good cause and materiality for the production of the requested documents. Specifically, the city attorney asserted the supporting declaration was inadequate in three respects: (1) it failed to provide a specific factual scenario for the requested discovery because it “merely denies the allegations contained in the arrest report”; (2) the few facts contained in the declaration – that Pimentel was to retrieve items from his motorhome and that he came in contact with another individual – were in accord with the arrest report; and (3) the declaration failed to explain Pimentel’s own conduct that prompted police to conduct a narcotics investigation and led to the seizure of narcotics and related evidence from Pimentel’s motor home.
At the hearing, the parties waived further argument, and the court denied the Pitchess motion, finding it was over broad and that “a denial of the allegations in the arrest [report]” was not sufficient to establish a plausible factual foundation.
The bench officer who heard the Pitchess motion did not preside over Pimentel’s first trial.
DISCUSSION
1. Applicable Law
When a defendant claims an officer has engaged in misconduct that provides a defense to the charges against the defendant, the defendant may file a Pitchess discovery motion seeking information from the officer’s personnel file regarding similar complaints of misconduct against the officer. (Pen. Code, §§ 1043, 1045; see California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019.) A trial court has wide discretion when ruling on a Pitchess discovery motion. (People v. Memro (1995) 11 Cal.4th 786, 832.) However, a trial court’s exercise of its discretion is not unlimited and must be governed by the controlling legal principles. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) We review the trial court’s denial of discovery of information from police personnel files for an abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992.)
To obtain in camera review of an officer’s personnel records for information relevant to claimed officer misconduct, the defendant must make a showing of good cause for the discovery. (Evid. Code, § 1043, subd. (b)(3).) To show good cause, a defendant must demonstrate both a “specific factual scenario” establishing a “plausible factual foundation” for the purported officer misconduct (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86; California Highway Patrol v. Superior Court, supra, 84 Cal.App.4th at p. 1020), and that the misconduct would (if credited) be material to the defense (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016). Warrick clarified the materiality element obligates the defendant to establish a logical link between the pending charge and the proposed defense and to articulate how the requested discovery is to support the proposed defense. (Id. at p. 1021.) Accordingly, defense counsel’s supporting declaration must propose a defense, and articulate how the requested discovery may be admissible as direct or impeachment evidence in support of the proposed defense, or how the requested discovery may lead to such evidence. (Id. at p. 1024.)
The defendant in Warrick was charged with possession of cocaine for sale after three officers reported that they saw him holding a bag of rock cocaine and that he dropped numerous rocks of cocaine as he fled the officers in an area of high narcotics activity. (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1016-1017.) The Warrick court concluded the defendant had articulated a sufficiently specific factual scenario of officer misconduct by asserting he was at the scene merely to purchase cocaine; when the police arrived he fled and ran past the actual seller; and the police were falsely accusing him of being the seller. (Id. at pp. 1022-1023.) Further, the court concluded this scenario was plausible because it was internally consistent and relevant to prove his defense he did not possess cocaine for sale. (Id. at p. 1027.) The Warrick court held that under the circumstances before it, the defendant’s “den[ial of] the factual assertions made in the police report – that he possessed and discarded the cocaine – . . . established ‘a reasonable inference that the [reporting] officer may not have been truthful.’” (Id. at p. 1023, second brackets in original.)
2. Pimentel’s Pitchess Motion Established Good Cause Under Warrick
The People contend the trial court did not abuse its discretion in refusing to conduct an in camera review because Pimentel did provide the necessary factual scenario to establish a plausible factual foundation for his allegations of police misconduct. Specifically, the People argue the defense declaration consisted of bare denials, without providing any alternative facts or reasons for being singled out by police, and Pimentel’s claim he was waiting to enter his motorhome did not contradict the arresting officers’ report.
Although far from a model for asserting the right to Pitchess discovery, Pimentel’s motion was sufficient to satisfy the “‘relatively low threshold’” for an in camera review articulated by the Supreme Court. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1019.) Under Pimentel’s factual scenario of police misconduct, contrary to the arresting officers’ report, he neither possessed nor sold narcotics on the street while waiting to enter his motorhome. These denials were sufficient to constitute the required factual scenario. (Id at pp. 1024-1025 [the required factual scenario may consist of a denial of the facts asserted in the police report].) Apart from his denials, Pimentel did not need to provide details of what he claimed to have been an entirely nonexistent event. Nor was Pimentel required to speculate as to the reasons the arresting officers singled him out or fabricated the narcotics transaction. (Id. at pp. 1023, 1025 [The scenario need not set forth a motive for the alleged police misconduct].) And, given that no indicia of narcotics sales (cash, narcotics) were found on Pimentel’s person, his denials were plausible – although not necessarily reasonably probable or credible – in that the purported police misconduct “might or could have occurred.” (Id. at p. 1026.)
The People also argue Pimentel did not demonstrate the purported misconduct was material to his defense, in that the declaration did not describe a logical link between the proposed defense – that Pimentel neither possessed nor sold narcotics on the street – and the pending charges of possession for sale of various narcotics. According to the People, because Pimentel was not charged with selling narcotics, even if the arresting officers had fabricated the narcotics transaction, “the charges that [Pimentel] possessed the drugs in the motorhome for the purposes of sale would have been unaffected.”
Any doubt about the adequacy of Pimentel’s showing of materiality is resolved by the prosecutor’s direct reference in closing argument to Pimentel’s failure to produce the type of evidence Pitchess discovery would have revealed. Addressing the jury in summation, Pimentel’s defense counsel argued Officer Razo falsely testified that Pimentel was contacted by police because he had engaged in a narcotics transaction. It was the defense theory that arresting officers were in the area to witness reported narcotics activity, but when “nothing happened,” they decided to contact Pimentel as he sat outside his motorhome. In rebuttal, the prosecutor disparaged the argument the officers had fabricated the narcotics transaction and had unjustifiably singled out Pimentel, “[Defense counsel is] implying that Officer Razo didn’t see a hand-to-hand transaction; right? [¶] And they just happened to be at this location. [¶] I mean, just – I mean, it just happened. [¶] And even though [Pimentel] himself says he didn’t know these officers before there has been no evidence of any – what I’m going to call beef or dispute or some reason to get [Pimentel]. [¶] These officers were working for ten years and they just decide, okay, we’re just going to make up a hand-to-hand transaction and then we’re just going to walk up to his guy who we don’t know; right?” The prosecutor’s argument plainly shows the trial court should have conducted an in camera review of the arresting officers’ personnel files to determine if, in fact, there were complaints concerning false charges or reports, fabrication of evidence, dishonesty or moral turpitude.
The People’s reliance on In re Giovanni B. (2007) 152 Cal.App.4th 312 is misplaced. In that case, the appellate court concluded because the minor had been detained on objectively reasonable facts that were not disputed by the minor, whether the arresting officers had lied about additional reasons for detaining him were of no consequence to the minor’s motion to suppress the weapon seized as the fruit of an unlawful detention. Accordingly, any Pitchess material the minor sought would not be material to his defense; he had not demonstrated good cause for an in camera review of the officers’ personnel records. (In re Giovanni B., supra, 152 Cal.App.4th at p. 321.) Here, by contrast, Officer Razo reported that she and fellow officers contacted Pimentel solely because she had witnessed his involvement in a hand-to-hand narcotics sale. Nothing in Officer Razo’s report suggests an alternative, objectively verifiable reason for police to have approached Pimentel, which would have made immaterial the issue of whether the narcotics transaction had been fabricated.
DISPOSITION
The judgment is reversed. On remand the trial court is to conduct an in camera review of the requested personnel files of Officer Annette Razo and Detective Erik Armstrong for relevance with respect to complaints concerning false charges or reports, fabrication of evidence, dishonesty or moral turpitude. If the trial court’s review on remand reveals no relevant information, the trial court is to reinstate the judgment of conviction. If the review reveals relevant information, the trial court must order disclosure, allow Pimentel an opportunity to demonstrate prejudice and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed. If no prejudice is shown, the trial court is to reinstate the judgment of conviction.
We concur:
PERLUSS, P. J. ZELON, J.