Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA083856. Kevin D. Filer, Judge.
Jeffrey Lewis, 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, Assistant Attorney General, Lance E. Winters and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant Ray Francis Rijos appeals from his conviction of selling a controlled substance (Health & Saf. Code, § 11352, subd. (a)). He contends: (1) the trial court abused its discretion in denying, in part, his Pitchess motion; (2) erred in admitting evidence of the controlled substance over a chain of custody objection; (3) the prosecutor committed prejudicial misconduct; and (4) imposition of consecutive sentences violated his Sixth Amendment rights. We affirm.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTUAL AND PROCEDURAL BACKGROUND
In addition to this substantive charge, various prior convictions were also alleged (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i) (Three Strikes Law); Pen. Code, § 667.5, subd. (b); Health & Saf. Code, § 11370.2, subd. (a).) After the trial court found defendant had suffered two prior convictions, defendant was sentenced to a total of 11 years in prison comprised of eight years on the substantive charge (the four-year midterm doubled pursuant to three strikes), plus a consecutive three years pursuant to Health and Safety Code section 11370.2, subdivision (a).
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that on March 16, 2006, police officers Gerry Davila and Rudy Barillas were working undercover as part of a 15-person, multi-agency task force investigating the Mis Amigos bar. Having visited the bar on a number of prior occasions in his undercover capacity, Davila was familiar with appellant, who worked as a security guard at the front door.
That day, Davila and two other undercover officers entered the bar posing as patrons at about 9:30 p.m.; a fourth undercover officer, Barillas, came in separately. Over the next hour and a half, Davila drank half of two beers. At about 11:00 p.m., Davila walked outside to signal the backup officers that everything in the bar was all right. Defendant struck up a conversation with Davila. When Davila asked defendant about buying cigarettes, defendant suggested that “John Doe,” who was standing nearby, would get Davila cigarettes of a better quality than those sold in the bar. After obtaining $5 from Davila, “Doe” walked away.
This man was referred to in the police report and at trial as “John Doe” because he was never captured.
While waiting outside the bar for “Doe’s” return, Davila observed a white Grand Cherokee pull into the bar parking lot and park about 10 feet away. After having a brief conversation with the front passenger of that vehicle, defendant walked out of Davila’s view. When defendant returned moments later, he handed something to the passenger in exchange for which the passenger handed defendant an indeterminate amount of US currency; the car then drove away.
“Doe” returned as the car was leaving the parking lot. After giving Davila the cigarettes, “Doe” asked Davila if Davila wanted any cocaine. Davila responded affirmatively and “Doe” told him to wait. “Doe” then walked over to defendant and whispered something in defendant’s ear. Defendant walked out of Davila’s view, in the same direction he had walked after talking to the occupant of the white Grand Cherokee. Moments later, defendant returned to where “Doe” was still standing; defendant handed “Doe” a small baggie containing what appeared to be powder cocaine in exchange for which “Doe” handed defendant some US currency. Davila had not seen from where defendant had obtained the cocaine.
As “Doe” walked away from defendant and towards the bar, he motioned Davila to follow him; Davila followed “Doe” to the men’s room in the back of the bar; there, Davila followed “Doe” half way into a toilet area, which was screened from the urinals by a half wall. Hearing a noise, Davila looked back and saw that Barillas had followed them into the men’s room and was standing at a urinal. After Davila answered affirmatively when “Doe” asked whether he had $20, “Doe” handed Davila the baggie Davila had seen “Doe” receive from defendant, Davila handed “Doe” a $20 bill and “Doe” walked quickly out of the men’s room. When Davila followed a few seconds later, he saw “Doe” walking out of the bar through the front door. Returning to his undercover partners, Davila called for backup. The backup officers arrived about a minute later and detained everyone in the bar. Defendant was arrested and found to be in possession of $22, but no narcotics or drug paraphernalia. “Doe” evaded capture.
As “cover officer,” Barillas’s role was to act as backup if any of the other undercover officers broke away from the group. In the men’s room, Barillas observed “Doe” give Davila a clear plastic bag containing a substance that resembled cocaine, in exchange for which Davila gave “Doe” some US currency. While at the bar before following Davila and “Doe” into the men’s room, Barillas had purchased two beers, which he only partially consumed.
Davila did not pursue “Doe” because he was confident that “Doe” did not know Davila was a police officer and that “Doe” would be standing outside the bar in the same place Davila had first encountered him a few minutes earlier.
For the defense, Alfredo Smith testified that, on March 16, 2006, he was the bouncer at the Mis Amigos bar and that defendant worked for him. When Smith parked his white Jeep Cherokee near the front entrance to the bar at about 7:45 that night, he saw defendant standing at the door. After going into the bar to tell the owner that he was there, Smith went back outside and sat in his car. From there, Smith observed Davila come outside and ask defendant about buying cigarettes, defendant suggested to Davila that “Viego” would get him some cigarettes, Davila gave Viego some money, and Viego went to get the cigarettes. Smith drove away, but came back a few minutes later. When he returned, Smith saw Viego give Davila the cigarettes. Smith heard Davila ask Viego where Davila could get cocaine and saw Viego respond by shrugging his shoulders. Next, Smith saw Viego walk over to defendant and whisper something to defendant. Davila and Viego then went into the bar; two minutes later, Smith saw the police rush in as Viego was leaving the bar; they did not stop Viego.
DISCUSSION
1. Pitchess Discovery
Defendant contends the trial court erred in denying his Pitchess motion as to Barillas and a third officer, Zamudio, although it granted the motion as to Davila. He argues that “a central component” of his defense was that Barillas and Zamudio “fabricated their testimony connecting appellant to John Doe . . . .” We find no error.
Pitchess motions “must be viewed against the larger background of the prosecution’s constitutional obligation to disclose to a defendant material exculpatory evidence so as not to infringe the defendant’s right to a fair trial [citations] . . . . [¶] The statutory scheme is set forth in Evidence Code sections 1043 through 1047 and Penal Code sections 832.5, 832.7 and 832.8.” (People v. Mooc (2001) 26 Cal.4th 1216, 1225-1226, fn. omitted (Mooc); Garcia v. Superior Court (2007) 42 Cal.4th 63, 69 (Garcia).) The Penal Code provisions designate peace officer personnel records as confidential, while the Evidence Code sections provide the specific procedures that must be followed to obtain discovery of the otherwise confidential personnel records. (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019.)
The requisite good cause showing for Pitchess discovery “is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents.’ [Citation.]” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 (Warrick).) Good cause 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.]” (Ibid.) The defendant must “establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.” (Id. at p. 1021; Garcia, supra, 42 Cal.4th at pp. 70-71.) “What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of” the affidavit submitted in support of the motion, the police report, witness statements, or other pertinent documents. (Warrick, supra, at p. 1025.) The information sought must be limited to instances of officer misconduct related to the misconduct asserted by the defendant. (Id. at p. 1021.)
Criminal defendants are not entitled to discovery of personnel records of officers who have only a tangential connection with the defendant vis-à-vis the charged offense. For example, in People v. Collins (2004) 115 Cal.App.4th 137, 149-150 (Collins), the appellate court affirmed a ruling limiting discovery to the personnel records of those officers who actually participated in the search that resulted in the discovery of a heroin filled balloon; the defendant was not entitled to discovery of the personnel files of the officers who received information that caused them to direct that the search be performed. And in Hinojosa v. Superior Court (1976) 55 Cal.App.3d 692, 697 (Hinojosa), the court held that the defendant was not entitled to discovery of the personnel records of officers who were not victims of the charged offenses of battery on a police officer and resisting arrest, and who were not directly involved in the fracas between the four defendants and several police officers.
Here, defendant’s Pitchess motion sought discovery of the personnel records of Davila, Barillas and Zamudio “relating to acts of dishonesty, planting evidence, false testimony, misrepresentation, perjury, writing false or misleading internal reports, including but not limited to false overtime or medical reports, fabrication of arrest reports . . . .” It was supported by a copy of the police report, written by Davila. In his supporting declaration, defense counsel averred that the requested materials were material and relevant because he “believes that Officers Davila, Barillas and Zamudio fabricated the events to support an arrest for a violation of Health and Safety Code section 11352. Defendant Rijos denies ever approaching a white Grand Cherokee and engaging in a hand to hand transaction and never handed anything to John Doe. Defendant Rijos never possessed any cocaine nor did he sell or furnish it to anyone else that night. Defendant Rijos only worked at the Mis Amigos Bar as a security guard that night.” The trial court granted the Pitchess motion as to Davila only, finding that only Davila had personal knowledge of defendant’s role in the incident. We find no error.
The report was consistent with Davila’s trial testimony in all material respects.
Davila was the only meaningful source of any evidence connecting defendant to the cocaine. Barillas observed the men’s room transaction between Davila and “Doe” and Zamudio booked into evidence the baggie he received from Davila. Barillas and Zamudio had, at best, a tangential connection with defendant vis-à-vis the charged offense. As such, it was not an abuse of discretion for the trial court to conclude that their personnel files were not discoverable. (People v. Prince (2007) 40 Cal.4th 1179, 1286 [abuse of discretion standard of review]; cf. Collins, supra, 115 Cal.App.4th at pp. 149-150; Hinojosa, supra, 55 Cal.App.3d at p. 697.)
Following an in camera examination of the custodian of records, the trial court concluded that there were no discoverable items as to Davila. At defendant’s request and pursuant to Mooc, supra, 26 Cal.4th at page 1229, we have reviewed the reporter’s transcript of the trial court’s in camera review of Davila’s personnel package and find the trial court properly concluded that there were no discoverable items.
2. Chain of Custody
As we understand defendant’s contention, it is that evidence of the analysis of the contents of the baggie depicted in People’s Exhibit 2 should have been excluded because there was a break in the chain of custody sufficient to cast doubt on whether the contents of the baggie had been tampered with. He argues that “although Davila testified generally to the use of DR numbers by the LAPD, he did not testify as to the specific DR number used in connection with the drugs or appellant in this case.”
A trial court’s ruling admitting evidence over a chain of custody objection is reviewed for abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 134 (Catlin).) The party offering the challenged evidence has the burden of showing that “ ‘ “taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.” [Citations.]’ [Citations.]” (Ibid.) So long as the links in the chain of custody connect the evidence with the case and raise no serious questions of tampering, minor temporal or other gaps will not result in exclusion of the evidence. (Ibid.)
Here, Davila identified People’s Exhibit 2 as a photograph of the baggie he received from “Doe;” that baggie was put in an evidence bag, which was sealed; the sealed evidence bag had a “DR” number on it. Davila explained that each arrest report is assigned a separate “DR” number and all evidence relating to the case is given the same DR number; Davila testified that he prepared the arrest report in this case but he was not asked what DR number was assigned to that report. Regarding the baggie, Davila clarified that, after receiving it from “Doe,” Davila put it in his pants pocket where it remained until Davila gave it to Zamudio at the police station later that night. Davila observed Zamudio put the baggie into an evidence bag, seal the evidence bag and write a description of the item on the face of the bag; Davila did not pay attention to what DR number Zamudio wrote on the bag and he could not recall whether he was present when Zamudio dropped the sealed bag into the evidence box, which was located downstairs from where Davila’s and Zamudio’s desks were located.
Criminalist Glenn Johnson testified that he recognized the envelope pictured in People’s Exhibit 2: “[THE PROSECUTOR]: When you received this envelope was it sealed? [¶] [JOHNSON]: Yes. [¶] [THE PROSECUTOR]: Showing you page 2 of People’s 2, does that look like the seal that was on the envelope? [¶] [JOHNSON]: Yes. [¶] [THE PROSECUTOR]: Showing you page 3 of People’s 2, does that item appear to be the item that you actually analyzed from People’s 2? [¶] [JOHNSON]: Yes.” Johnson concluded that the item he analyzed was 0.30 grams of cocaine hydrochloride (the powdered form of cocaine).
Objecting to the admission into evidence of Exhibit 2, defense counsel argued that the prosecution had failed to establish chain of custody inasmuch as Davila testified that he gave the baggie to Zamudio, who sealed it into an evidence bag, but there was no evidence of what Zamudio did with the sealed evidence bag. The trial court overruled the objection, finding that the prosecution had met its burden of establishing chain of custody.
We find no abuse of discretion in the trial court’s ruling. It was undisputed that: Davila remained in possession of the baggie from the time he received it from “Doe” until he gave it to Zamudio. Davila saw Zamudio place it in an evidence bag and seal the evidence bag. The sealed evidence bag depicted in People’s Exhibit 2 was the sealed evidence bag into which Davila saw Zamudio place the baggie. It was also the sealed bag from which the criminalist took the substance which he determined to be cocaine. There was no evidence that anyone dealt with the contents of the baggie between the time Davila observed Zamudio sealing it into the evidence bag and the time Johnson removed it from the still sealed bag for analysis. Absent something more than mere speculation that the contents of the evidence bag may have been tampered with after Zamudio sealed it and before the criminalist unsealed it, the trial court properly admitted the evidence and let any doubt go to the weight of the evidence. (Catlin, supra, 26 Cal.4th at p. 134.)
3. Prosecutorial Misconduct
Defendant contends the prosecutor committed various acts of prejudicial misconduct including vouching for a witness, inviting the jury to consider sentencing, and expressing his personal belief in defendant’s guilt.
“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. 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.” (People v. Gray (2005) 37 Cal.4th 168, 215 (Gray), internal quotations and citations omitted.) During closing argument, a prosecutor has wide latitude to challenge the defendant’s evidence, so long as the argument is a fair comment on the evidence or a reasonable inference drawn therefrom. (Id. at p. 216.) Here, none of the acts complained of by defendant meets the standard for prosecutorial misconduct.
a. Vouching
A prosecutor is prohibited from vouching for the credibility of a witness but “so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ her comments cannot be characterized as improper vouching. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 971 (Frye) [reference that witness “is telling the truth” was simply a call to reflect on all of the evidence presented at trial; jury not likely to believe prosecution had any personal knowledge or information].)
Here, the challenged comment arose in the context of applying CALCRIM 226 to the facts of this case. As given, CALCRIM 226 reads: “In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶] . . . [¶] What was the witness’s behavior while testifying?” Regarding CALCRIM 226, the prosecutor argued: “ ‘What was his behavior while testifying?’ Again, that’s for you to decide. I thought he was very straightforward. He answered my questions, the defense attorney’s questions, in a respectful manner . . . .” Overruling defense counsel’s vouching objection, the trial court admonished the jury: “Just keep in mind, the attorneys are arguing the case. Their statements are not evidence.” The prosecutor continued: “He answered the questions directly. That’s basically a decision for you to make but I think it was very clear that he wasn’t trying to add anything that he didn’t know.”
Like the comments of the prosecutor in Frye, supra, 18 Cal.4th at page 971, this comment was “simply a call to reflect on all of the evidence presented at trial” and no reasonable jury would have understood the challenged comments as the prosecutor’s personal assurance that Davila was truthful.
b. Invitation to Consider Sentencing
The trier of fact in a criminal case the trier of fact is not to be concerned with punishment. (People v. Allen (1973) 29 Cal.App.3d 932, 936; see also People v. Nichols (1997) 54 Cal.App.4th 21 [trial court properly refused to answer jury’s question as to whether the defendant would be subject to the Three Strikes law if convicted].)
Consistent with the above authorities, the jury in this case was given CALCRIM 200, which reads: “You must reach your verdict without consideration of punishment.” But defendant challenges the following comment made by the prosecutor in his final closing argument: “[T]his is not one of your glamorous like murder cases or Three-Strikes cases or life cases . . . .”
The challenged comment was the final volley in an exchange which began with this statement by the prosecutor: “My closing is going to be fairly brief because ultimately in this case you’re just going to have to decide who you believe. There’s really not much to it, though. It’s not a very exciting case; it’s your regular run-of-the-mill case. And you should take your responsibility very seriously.” Defense counsel responded during his closing argument: “[The prosecutor] started by saying this is a run-of-the-mill case. Now, I imagine if any person was forced to answer some charges that they didn’t believe were true, if any of you had to sit in this seat, it would not be a run-of-the-mill case so, unfortunately, I have to say I resent the fact that he’s making light of this charge. This is serious. Mr. Rijos is in jeopardy here and I’m sure all of you will give him a fair shot in this case. This is not a run-of-the-mill case.” Finally, the prosecutor responded: “I never said don’t do your job seriously. It’s a run-of-the-mill case in the sense that there are a lot of drug dealers out here in Compton and this is not one of your glamorous like murder cases or Three-Strike cases or life cases or, you know, something like that. That’s what I intended by it.” (Italics added.)
While it is preferable for a prosecutor to avoid mentioning sentencing altogether, he did not urge the jury to consider the penalty defendant would face if he were found guilty. Rather the prosecutor’s comment was an exhortation to treat this case seriously. There was no misconduct. (Gray, supra, 37 Cal.4th at p. 215.)
c. Expression of Personal Belief
“When arguing to the jury, it is misconduct for a prosecutor to express a personal belief in the defendant’s guilt if there is a substantial danger that the jurors will construe the statement as meaning that the belief is based on information or evidence outside the trial record [citation], but expressions of belief in the defendant’s guilt are not improper if the prosecutor makes clear that the belief is based on the evidence before the jury [citation].” (People v. Mayfield (1997) 14 Cal.4th 668, 781-782.)
Here, the challenged comment is the italicized portion of the following statement made by the prosecutor during closing argument: “I don’t have a reasonable doubt but my mentality, my state of mind is not relevant. You each have to decide on your own. [¶] . . . [¶] I don’t think there’s a reasonable doubt that the old man gave the officer some money. I don’t think there is any doubt of that. If you want to somehow come up with a doubt on that, fine. You say he didn’t give him the money, he gave it away for free, that’s all I was trying to say. There’s no doubt in my mind as to this defendant’s guilt but, again, you each have to decide that on you own and you each have to decide that by basically making the decision, is this officer lying?” (Italics added.)
When a prosecutor mentions “reasonable doubt” preceded or shortly followed by “I” or “my”, an alarm should ring. Obviously the words chosen by the district attorney here ran the risk of expressing personal belief. However, given the entirety of the statement there is no likelihood that the jury inferred the prosecutor’s belief was based on information or evidence outside the record.
At oral argument respondent conceded the statement in question was somewhat “inartful” and could have been better phrased.
4. Consecutive Sentences
Defendant contends the trial court’s imposition of a consecutive sentence pursuant to Health and Safety Code section 11370.2, subdivision (a) [requiring imposition of a consecutive three-year term for each prior conviction of specified drug related offenses] violated the Sixth Amendment because it was based on facts not found true by a jury beyond a reasonable doubt. (See generally Cunningham v. California (2007) ___ U.S. __ [127 S.Ct. 856] (Cunningham); Blakely v. Washington (2004) 542 U.S. 29 (Blakely); Apprendi v. New Jersey (2000) 530 U.S. 466 (Aprendi).)
The People’s argument that defendant waived this issue by failing to object in the trial court is not well taken. At the time of defendant’s July 2006 sentencing hearing, People v. Black (2005) 35 Cal.4th 1238 (Black I), which held that Blakely did not apply to California’s determinate sentencing law (id. at p. 1244), was the controlling precedent. Accordingly, it would have been futile for defendant to raise a Blakely objection at sentencing. “Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.” (People v. Welch (1993) 5 Cal.4th 228, 237-238.)
While this appeal was pending, the California Supreme Court held that the determination of whether two or more sentences should be served consecutively does not implicate the defendant’s Sixth Amendment rights under the Apprendi/Blakely/ Cunningham line of cases. (People v. Black (2007) 41 Cal.4th 799, 821-823 (Black II).) We must therefore reject the argument in this case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.