Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. NA082799
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [There is no change in judgment]
GOOD CAUSE appearing, the opinion filed May 5, 2011, in the above entitled matter is hereby modified as follows:
On page 10, first full paragraph, the last sentence reads: “But the trial court denied the motion as to Gell’s personnel records, reasoning that the factual allegations of misconduct as to him were too conclusory.” After that sentence, ADD the following sentence: “And later, the trial court reversed itself and denied the Pitchess motion as to Kirk in its entirety.”
On page 10, delete the last paragraph that begins with “Even assuming for the sake of argument....” And INSERT the following paragraph: “Even assuming, for the sake of argument, that it was error to deny Pitchess discovery as to Kirk and Gell relating to dishonesty, defendant has failed to establish the requisite element of prejudice. This is because extensive evidence connected defendant to the charged offenses as to which Kirk and Gell was a material witnesses. Defendant’s own testimony that he was in possession of methamphetamine when he was arrested by Gell supported the conviction on counts 1 and 2 (possession and transportation of methamphetamine). The conviction for resisting arrest (count 5) was supported by defendant’s own admission that he closed his legs to prevent Gell from completing a search of defendant’s person. Defendant’s testimony that he stayed with Waggoner six to eight nights during June and six to eight nights during July, as well as Waggoner’s testimony that defendant stayed with her several nights a month in June and July and that she gave him the safe in which Kirk found methamphetamine and a gun during the execution of a search warrant, supported the convictions on counts 3 and 4 (possession of methamphetamine for sale and possession of a firearm by a felon). In light of the extensive evidence that connected defendant to the charged offenses, there was no reasonable probability that the outcome of the case would have been different had complaints against Kirk and Gell for excessive force and/or dishonesty been disclosed to the defense.”
There is no change in judgment.
The petition for rehearing is denied.
BIGELOW, P. J. RUBIN, J. GRIMES, J.