Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F04744
NICHOLSON , J.
A jury found defendant, Joseph N. Warren, guilty of possession of cocaine base. The jury also found true allegations that defendant (1) was previously convicted of voluntary manslaughter, (2) served a prior prison term for that conviction, and (3) served two prior prison terms for separate counts of forgery.
The trial court sentenced defendant to the middle term of two years for possession of cocaine base, doubled pursuant to the “Three Strikes” law, plus one year each for two of the three prior prison terms, for a total of six years. The court stayed a one-year term for the final prior prison term pending successful completion of defendant’s sentence.
Defendant, who represented himself at trial, now contends that (1) the trial court erred by denying his Pitchess motion requesting the review and production of the arresting officer’s personnel records involving complaints of dishonesty, misrepresentation of facts, illegal arrests, unlawful searches, and other acts of moral turpitude, and (2) his Sixth Amendment right of confrontation was violated when the toxicology report, which stated defendant’s blood contained cocaine, was admitted into evidence even though the criminalist who administered the test did not testify at trial.
A criminal defendant who chooses to represent himself “is not entitled either to privileges and indulgences not accorded attorneys or to privileges and indulgences not accorded defendants who are represented by counsel.” (People v. Williams (1959) 174 Cal.App.2d 364, 382, italics omitted.)
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
We affirm. First, even assuming without finding that the trial court erred in denying the Pitchess motion, any error was harmless. And second, defendant forfeited his right to claim a confrontation clause violation on appeal because he failed to raise the issue at trial.
STATEMENT OF FACTS
On May 27, 2004, Sacramento Police Officer Winston Gin, along with four other officers and a canine unit, comprised of Officer Ronald Chesterman and his dog, went to 7349 Alcedo Circle in Sacramento to pick up a parolee at large named Jerome McGee. Parole agent Jeff Green described McGee to Officer Gin as a 39-year-old male, five feet, eight inches tall, weighing 230 pounds, with a shaved head, mustache, and a dark complexion. He described the residence at 7349 Alcedo Circle as a drug treatment center or halfway house for drug addicts.
Once at the residence, Officer Chesterman and his dog went to the rear of the house to prevent an escape. As Officer Chesterman approached the backyard, he heard two male voices. When he reached the backyard, he commanded two men to get on the ground, and they did.
Officer Gin knocked on the front door. Through a frosted window, he could see someone who fit the description of McGee. This person approached the front door and asked who was there. Officer Gin said, “Sacramento Police, open up the door.” The person looked out through the living room window, and Officer Gin confirmed that he fit the description of McGee.
At that time, Officer Chesterman reported that he had detained two men in the backyard. Officer Gin sent Officer Marc Milligan and his partner, Officer Mike Mullen, to assist Officer Chesterman. Two men were lying face down on the ground in the backyard. Defendant was one of those men. Officer Milligan was covering defendant when the person resembling McGee exited the house into the backyard. Officer Milligan ordered him to lie down on the ground, and he did.
Meanwhile, through the frosted window Officer Gin saw the person who resembled McGee running toward the rear of the house. Officer Gin kicked in the front door and entered. Other people were inside; some were parolees. Officer Gin ordered them all to lie down on the floor. Officers Hefner and Peterson, who followed Officer Gin into the house, covered the people lying on the floor. Officer Gin continued to the backyard. The person resembling McGee was actually Kenneth Smith.
Officer Milligan asked defendant if he was on parole, and defendant responded that he was. Officer Milligan handcuffed defendant, stood him up, and walked him to Officer Milligan’s patrol car, which was “parked down the street a little ways.” There, he confirmed with his car computer that defendant was on parole. Officer Milligan then searched defendant and found a small, off-white, canvas bag containing 5.5 grams of rock cocaine wrapped in plastic. Officer Milligan testified that as he pulled the bag out of defendant’s pocket, defendant said “something to the effect of ‘this is not going to be good.’” Officer Milligan also testified that defendant told him he had used some cocaine earlier that day. The other officers were not involved in, nor did they have direct knowledge of the seizure of the cocaine found on defendant. However, Officer Chesterman testified that he saw a plastic bag in defendant’s hand on the day of the arrest, which he understood was later found to contain rock cocaine. Out of eight people at the residence that day, only Kenneth Smith, the man who the police thought was McGee, and defendant were arrested.
At a preliminary hearing, Officer Milligan testified that defendant was sitting on a bench in the backyard when he first encountered him. However, in his report of the arrest, he stated that defendant was lying on the ground when he first encountered him. At trial, Officer Milligan said he did not recall what position defendant was in when he first encountered him. Also at the preliminary hearing, Officer Milligan apparently testified that he did not remember the location on defendant’s person where he had found the cocaine. But at trial, he testified that he found it in defendant’s right front pocket.
On the day of the arrest, blood was drawn from defendant and two vials were placed into evidence. Robert Garbutt, the supervisor of the toxicology unit for the Sacramento County Laboratory of Forensic Services, explained that Edwin Smith tested the blood. Smith was a former employee and supervisor of the toxicology unit at the laboratory. From Smith’s case notes, Garbutt could see that Smith conducted a gas chromatograph mass spectrometer test on defendant’s blood. The report of that test reflected that defendant’s blood contained cocaine. Smith did not testify at trial.
DISCUSSION
I
Police Personnel Records
Defendant claims: (1) the trial court erred by not reviewing records of complaints against Officer Milligan involving misrepresentation of facts, illegal arrests, unlawful searches, and other acts of moral turpitude, and (2) the trial court erred when it did not disclose Officer Milligan’s personnel report involving a false arrest complaint. We conclude that, even if the trial court erred, any error was harmless.
During trial, defendant filed a Pitchess motion under Evidence Code section 1043. The motion requested any of Officer Milligan’s personnel records involving complaints of dishonesty, misrepresentation of facts, illegal arrests, falsification of evidence and testimony, unlawful search and seizure, and other acts of moral turpitude. In the declaration supporting the motion, defendant alleged that Officer Milligan was untruthful in his description of the events of defendant’s arrest. He stated that the information sought would be used to impeach Officer Milligan and show that he had a “habit or custom” of providing false information.
Defendant’s declaration asserted the facts surrounding defendant’s arrest to be as follows: McGee was not a parolee at large, and the search for McGee was just an invention used by the police to justify an illegal entry, which was actually conducted for the purpose of harassment. Defendant was accosted by Officer Chesterman and his dog, ordered to the ground at gunpoint, and illegally arrested by Officer Milligan. The officers mistreated defendant simply because he was Black. When defendant told the police that the man they had arrested was not McGee, Officer Milligan became angry and yelled at defendant for “interfering.” Either Officer Milligan or Officer Chesterman planted cocaine on defendant and accused him of possessing it. Defendant could not tell which officer planted the cocaine on him because it was dark and he was face down on the ground.
The trial court granted an in camera review only as to complaints against Officer Milligan regarding prior false statements or false reports. It found lack of good cause set forth in the declaration with respect to complaints of discrimination, illegal arrests, unlawful searches, and other acts of moral turpitude.
The court conducted an in camera hearing, outside the presence of the parties, with police department custodian of records Sergeant Donald Rehm. The court asked Sergeant Rehm whether he found any complaints involving false statements or false reports in Officer Milligan’s personnel records. Sergeant Rehm replied that he had found “one complaint, one complaint only.” The complaint involved an alleged false arrest. The court replied, “[a]ctually that wasn’t what I specifically asked.” Sergeant Rehm then stated that there were no allegations against Officer Milligan involving false statements or false reports.
In response to the one false arrest complaint, the court asked, “Obviously, based on the false arrest could be things of a totally or unrelated to that issue?” (Sic.) Sergeant Rehm nodded. The court called the parties back into the courtroom and informed them that there was “no discoverable material on this issue.”
The trial court has broad discretion in ruling on both the good cause finding and the ultimate disclosure of a Pitchess motion. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086.) The reviewing court should reverse the trial court's ruling only upon a showing of abuse of this discretion. (Ibid.)
The trial court may grant the review and disclosure of police personnel records only if the requirements of a two-step process are met. The first step requires the defendant to describe the information sought and to provide affidavits showing good cause for the court to review the personnel records. (Evid. Code, § 1043, subd. (b)(2) & (3).) To show good cause, the defendant must provide a factual scenario that could have occurred and demonstrate that the requested discovery would support the proposed defense. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1026-1027.)
Once the defendant has shown good cause, the second step requires the custodian of personnel records to bring to the trial court all documents potentially relevant to the defendant's motion. (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) The court then conducts an in camera review of the records to determine if any information is relevant to the subject matter of the current case. (Evid. Code, § 1045, subd. (b).) “[O]nly documentation of past officer misconduct which is similar to the misconduct alleged by defendant . . . is relevant and therefore subject to discovery.” (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1021, italics in original.)
In this case, defendant argues that he showed good cause for the review of all information requested in the Pitchess motion. He contends that all information requested, not just complaints about false statements and false reports, would have been relevant to showing that Officer Milligan had a propensity to lie in order to wrongfully convict, plant drugs on defendants, make false arrests, and conduct illegal searches.
Defendant makes a good argument that (1) he showed good cause for discovery of complaints alleging false arrest and (2) the trial court should have, at least, inquired further into the allegations of the false arrest complaint from Officer Milligan’s personnel file. Defendant outlined a defense raising the issue of whether Officer Milligan had a practice of making false arrests and, without knowing more about the false arrest complaint, we must conclude it is plausible that the false arrest complaint could have contained information supporting defendant’s allegations about his arrest. (See Warrick v. Superior Court, supra, 35 Cal.4th at p. 1027 [upon good cause showing, defendant entitled to have trial court review personnel file for relevance of complaints in file].)
However, even assuming that the trial court erred, the error was harmless.
On appeal, a defendant must demonstrate that prejudice resulted from the denial of discovery. (People v. Memro (1985) 38 Cal.3d 658, 684.) “[T]he proper standard of analysis regarding whether a defendant was prejudiced from the denial of a discovery motion is to determine if there was a reasonable probability that the outcome of the case would have been different had the information been disclosed to the defense.” (People v. Hustead (1999) 74 Cal.App.4th 410, 422.)
In this case, the police department’s records custodian reviewed Officer Milligan’s personnel records and found “one complaint only.” The only complaint against Officer Milligan involved a false arrest. A search by the trial court of complaints against Officer Milligan for dishonesty, misrepresenting facts, illegal arrests, unlawful searches, and other acts of moral turpitude produced nothing more than the one complaint of false arrest.
It is not reasonably probable that defendant would have obtained a better result had the complaint alleging false arrest been disclosed because (1) the false arrest complaint in Officer Milligan’s personnel file did not involve false statements or false reports and (2) the evidence against defendant was overwhelming, even considering that Officer Milligan may have made a false arrest in the past.
The trial court’s questioning of the custodian of records established that the complaint against Officer Milligan alleging false arrest did not involve allegations of false statements or false reports. When the trial court asked whether there were any allegations that he provided false statements or false reports, the custodian replied that there were no such allegations. Therefore, whatever the allegations were in that complaint, they did not allege that Officer Milligan made a false statement or report about it.
The evidence of defendant’s guilt was overwhelming. Another officer, about whom defendant, on appeal, makes no assertion of misconduct, testified that he saw a plastic baggie in defendant’s hand. Defendant admitted having taken cocaine that day, an admission borne out by the toxicology report showing cocaine in defendant’s blood. Defendant was encountered during a search for someone else. There is no evidence the officers knew defendant or held a grudge against him or people of his race. Although defendant alleges that Officer Milligan was irritated when defendant said that Kenneth Smith was not the parolee they were looking for, it is unlikely such a minor irritation would cause an officer to plant drugs on defendant.
Defendant contends that Officer Milligan’s credibility was put into question given the inconsistencies in his testimony about where defendant was when Officer Milligan first encountered him and where the cocaine was found. Defendant argues that given these inconsistencies, and the fact that none of the other officers had direct knowledge of the seizure of the cocaine, even slight evidence of Officer Milligan’s dishonesty could have resulted in defendant’s acquittal. We disagree. These minor inconsistencies in Officer Milligan’s testimony, given almost one year after the arrest, are not persuasive in showing lack of credibility.
Because the evidence that defendant possessed cocaine was overwhelming and defendant’s story of planted evidence and false arrest is doubtful, it is not reasonably probable that the outcome of defendant’s case would have been different if the jury heard about Officer Milligan’s one false arrest complaint. Therefore, any error committed by the trial court in not reviewing more thoroughly the false arrest complaint was harmless.
II
Right to Confrontation
Defendant argues that his Sixth Amendment right to confrontation was violated when the toxicology test results, which reported that defendant’s blood contained cocaine, were admitted into evidence. Specifically, defendant argues that his right to confrontation was violated because the toxicology report was “testimonial” evidence under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] and he did not have the opportunity to cross-examine Smith, the criminalist who conducted the test. We need not discuss the merits of this argument because defendant failed to object based on violation of his confrontation rights and therefore, failed to preserve the issue for appeal.
At trial, the district attorney called Robert Garbutt, supervisor of the toxicology unit of the Sacramento County Laboratory of Forensic Services, to testify about defendant’s blood sample test. According to Garbutt, Edwin Smith was the former supervisor of the toxicology unit and the employee who conducted defendant’s blood test.
When the district attorney asked Garbutt what type of test Smith had conducted, defendant objected. The court asked, “What’s the objection?” Defendant replied, “He says what type of test. I don’t think [Garbutt] qualifies to answer that. Nobody else can answer that but Mr. Smith.”
The court asked Garbutt if he would be able to answer the question of what type of test was used based on the information he had. Garbutt said that by looking at the case notes relating to the test he could answer the question. Defendant objected again, stating that the case notes were hearsay. The court overruled defendant’s objection.
A party who, on appeal, desires to assert that the trial court erroneously admitted evidence must object at trial, making clear the specific ground for the objection. (Evid. Code, § 353 subd. (a).) In the absence of a specific objection at trial, the admissibility issue urged on appeal will not be considered. (People v. Seijas (2005) 36 Cal.4th 291, 301.)
Defendant argues that he “clearly” raised a confrontation clause issue at trial when (1) he stated that “[n]obody else can answer that but Mr. Smith,” in response to the question of what type of test was conducted and (2) when he objected on the basis of hearsay to the admission of Smith’s case notes relating to the blood test. We disagree.
The grounds for objection must be sufficiently specific to enable the trial court to make an informed ruling on the objection and must enable the party proffering the evidence to cure any defect. (People v. Boyette (2002) 29 Cal.4th 381, 424.) The purpose of the specificity rule “‘is to encourage a defendant to bring any errors to the trial court's attention so the court may correct or avoid the errors and provide the defendant with a fair trial.’ [Citation.]” (People v. Carrillo (2004) 119 Cal.App.4th 94, 101.) “Trial judges are not supposed to have the numerous, varied, and complex rules governing the admissibility of evidence so completely in mind and of such ready application that under an omnivagant objection to a question they can apply with legal accuracy some particular principle of law which the objection does not specifically present.” (Bundy v. Sierra Lumber Co. (1906) 149 Cal. 772, 776.) Therefore, an objection to the admissibility of evidence will be insufficient if it does not fairly apprise the trial court of the issue it is being called upon to decide. (People v. Carrillo, supra, 119 Cal.App.4th at p. 101.)
For example, in People v. Chaney, the defendant argued that a police officer’s testimony about statements given by an adverse witness denied the defendant his right to confront the adverse witness. (People v. Chaney (2007) 148 Cal.App.4th 772, 777-778.) He claimed that his objection at trial, that he was unable to cross-examine the declarant, was specific enough to imply a constitutional violation. However, the court found that the inability to cross-examine is a definitional characteristic of hearsay and does not necessarily trigger constitutional considerations. (Ibid.) Chaney held that the defendant’s objection did not fairly provide the court with the opportunity to decide whether there was a confrontation issue, and therefore defendant could not argue on appeal that his Sixth Amendment right to confront was violated. (Id. at p. 779.)
Similarly, in this case defendant’s comment about Smith being the only one who could state the type of test conducted was not specific enough to apprise the trial court of a confrontation clause issue. Defendant did not base his objection on a Sixth Amendment constitutional violation. Thus, the court did not have the opportunity to analyze and decide a confrontation clause issue.
Analysis of a confrontation clause issue involves a determination of whether the declarant is unavailable and whether the defendant had a prior opportunity to cross-examine the declarant. If both of these questions are answered in the affirmative, the confrontation clause will not bar the testimony. (Crawford v. Washington, supra, 541 U.S. at pp. 53-54.)
Likewise, hearsay objections do not preserve confrontation issues for appellate review. (People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14.) A confrontation clause analysis is “distinctly different than that of a generalized hearsay problem.” (People v. Chaney, supra, 148 Cal.App.4th at p. 779.) "A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct.” (People v. Partida (2005) 37 Cal.4th 428, 434.)
In this case, defendant’s hearsay objection did not bid the court to conduct a confrontation clause analysis. Therefore, defendant has forfeited his claim that admission of the evidence violated his right of confrontation.
In any event, the California Supreme Court has recently rejected the same confrontation clause argument. (People v. Geier (2007) 41 Cal.4th 555.)
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment. The term imposed for count one is four years, not two years. The trial court is directed to make this correction and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: BLEASE , Acting P.J. BUTZ , J.