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People v. Wilson

California Court of Appeals, Second District, Second Division
Feb 9, 2011
No. B218296 (Cal. Ct. App. Feb. 9, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA345652, Craig E. Veals, Judge.

Cynthia L. Barnes, 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, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.


ASHMANN-GERST, J.

Joseph Lee Wilson, Jr., also known as Ernest Wilson (Wilson), appeals from the judgment entered upon his convictions by jury of custodial possession of a firearm (Pen. Code, § 4502, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)) and mayhem (§ 203). In connection with the assault and mayhem counts, the jury found that Wilson inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The trial court found to be true the allegations that Wilson had suffered four prior felony strikes within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). It sentenced Wilson to three consecutive prison terms of 25 years to life. Wilson contends that the trial court (1) abused its discretion in denying his Pitchess motion, and (2) erred in failing to apply section 654 to the three counts of the sentence.

All further statutory references are to the Penal Code unless otherwise indicated.

A count for attempted murder was dismissed at the People’s request.

Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

We conditionally reverse with directions.

FACTUAL BACKGROUND

The prosecution’s evidence

On July 30, 2008, Michael Hogan (Hogan) was in custody in Los Angeles County men’s central jail. He was housed as a “K-10” inmate, in 3100, Row A, cell 14. Wilson was on that row in cell 16. Inmates designated as “K-10” are housed at that location because their cases or their hostile nature require that they be in individual cells. Hogan’s request for protective custody because he had been stabbed twice before at that location was denied.

Near 10:30 a.m., Deputy Danielle Leos was escorting Hogan back to his cell. Behind them, Deputy Albert Murad was escorting Kenneth Smith (Smith), another inmate on row A, back to his cell. Smith and Hogan were handcuffed. Smith broke free of his escort, charged Hogan, kicked him and pushed him in the direction of Wilson’s cell. Wilson reached through the bars of his cell, grabbed Hogan, pulled him to the bars and tried to slice Hogan’s throat with a homemade razor, instead slicing a five-inch laceration on Hogan’s face, when Hogan moved. Deputy Leos saw a metal object in Wilson’s hand when he made a slicing motion as he held onto Hogan. After the attack, Hogan said that Wilson attacked him.

Deputy Murad heard Wilson during the attack say, “That’s what you get you piece of shit faggot, ” or “you white piece of shit faggot.” Hogan began screaming, “He fuckin’ cut me. Wilson fuckin’ cut me.” Hogan was bleeding profusely and taken for medical care. He had a “clean laceration, ” with no bruising or swelling as one would expect to see if he had fallen against the cell. Deputy Murad described the weapon as a white toothbrush handle with razor blades attached at the end.

Despite a search of Wilson’s cell, no weapon was recovered that day. A couple of weeks later, a similar weapon, which Deputy Murad believed was the one used in the attack, was found inside another cell.

The defense’s evidence

The defense called to the stand Smith, Kristin Bryant (Bryant) and Artis Stanley (Stanley), other inmates on Row A. All three were incarcerated for serious felony convictions and were Crips gang members, Stanley and Smith in the 83rd Street Crips gang. The substance of their testimony was the same; there was a scuffle between Hogan and Smith, Hogan injured himself by hitting his head against the cell bars; Wilson did not reach through his cell bars or cut anyone. Bryant said it would be impossible to reach through the bars and would be possible but awkward to reach through the meal slot to grab someone.

Wilson’s testimony was similar to the other inmates. He heard a commotion, jumped out of bed, looked through the bars and saw Hogan and Smith kicking each other. When it appeared that Hogan and Smith were approaching Wilson’s cell, he stepped away from the bars to avoid becoming involved. The altercation concluded when Hogan hit his head against Wilson’s cell door. Wilson did not see how Hogan was injured.

The parties stipulated that the weapon found in cell 10 was tested for DNA. Wilson’s DNA was not found on it.

Rebuttal

Sergeant Ramon Lascano photographed another deputy inside cell 16 with his arms extended through the bars. Five minutes passed after the attack on Hogan before deputies could search his cell. It would have been possible for Wilson to pass the weapon to the occupant of another cell during that time.

DISCUSSION

I. Denial of Pitchess motion

A. The motion

Wilson filed a Pitchess motion, seeking (1) the names, addresses and telephone numbers of all persons who filed complaints against Deputies Murad or Leos “relating to false reports, perjured testimony, lying and untruthfulness, ” or who were interviewed by, investigators or other Sheriffs personnel related to those complaints; (2) “[v]erbatim copies of all statements, written or oral, made by persons” described in category 1, above, (3) “[c]opies of all investigative reports prepared by members of the Investigating Department of such complaints;” (4) “[a]ll records of statements, reputations [sic], or opinions... pertaining to the use of false reports, perjured testimony, lying and untruthfulness” of Officers Murad or Leos; and (5) “[a]ll findings, reports, opinions, and transcripts of disciplinary actions or proceedings” commenced or taken by the deputies relating to the use of false reports, perjured testimony, lying and untruthfulness.

Defense counsel’s declaration supporting the motion states that the Investigating Department receives, investigates and maintains complaints concerning law enforcement officers in the officers’ personnel and other files maintained by the department. The materials sought in the motion are exclusively in the possession or control of the Investigating Department. The materials sought are necessary for the defense to prepare for trial and “to effectively represent defendant.” “Deputy Albert Murad... and Deputy Leos... have reported that on July 30, 2008, defendant grabbed Michael Hogan, held Hogan against the bars of his cell and sliced Hogan’s head with an instrument resembling a razor.... The defense has discovered that the version of Murad and Leos is not true. Defendant did not grab Michael Hogan, hold Hogan against the bars of his cell and slice Hogan’s head with an instrument resembling a razor. The defense can call at least one witness, and possibly more, who will so testify. Thus the reports of Murad and Leos are false.” The records sought were relevant to the officers’ propensity to make false reports and give perjured testimony. The information would be used to cross-examine the deputies, for impeachment where appropriate and in discovery of other admissible evidence.

B. The hearing

At the Pitchess hearing, defense counsel argued that under Warrick and other case authority, a mere denial of the police versions of events by Wilson and other witnesses is sufficient to establish “a plausible scenario.” Wilson’s denial that he used a razor and the statement of Bryant that the police versions never happened contradicted the deputies’ reports and were sufficient to justify production.

Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick).

C. The ruling

The trial court denied the motion without conducting an in camera hearing, concluding that the defense declaration amounted to a mere denial of what occurred and was therefore insufficient to constitute an “alternative factual plausible scenario” and that the victim’s version of the incident corroborated and confirmed the version given by the officers which made the factual scenario offered implausible. The trial court stated: “A mere denial under Warwick still requires an alternative plausible factual scenario.”

D. Contentions

Wilson contends that the trial court abused its discretion by denying his motion for Pitchess discovery. He argues that his version of events was plausible given the factual scenario described in defense counsel’s declaration, which is internally consistent and supports the defense that Wilson did not attack Hogan with a razor as described by the two deputies. This contention has merit.

E. Good cause for disclosure

In Pitchess, the California Supreme Court held that a criminal defendant is entitled to discovery of officer personnel records if the information contained in the records is relevant to his ability to defend against the charge. (See Pitchess, supra, 11 Cal.3d at pp. 537–538.) Later-enacted legislation implementing the court’s rule permitting discovery (§§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043–1047) balanced the accused’s need for disclosure of relevant information against a law enforcement officer’s legitimate expectation of privacy in his or her personnel records. The Legislature concluded that a defendant by written motion may obtain information contained in a police officer’s personnel records if it is material to the facts of the case. (Evid. Code, § 1043, subd. (b)(3).) When presented with such a motion, the trial court rules as to whether there is good cause for disclosure. (Evid. Code, §§ 1043, 1045.)

To obtain disclosure of police personnel records, the defendant must submit affidavits establishing “good cause.” (Evid. Code, § 1043, subd. (b)(3); Warrick, supra, 35 Cal.4th at p. 1019.) The affidavits may be on information and belief and need not be made on personal knowledge. (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) Good cause for discovery exists when the defendant demonstrates (1) materiality of the requested material to the subject matter of the pending action, and (2) a reasonable belief the agency has the type of information sought. (Evid. Code, § 1043, subd. (b)(3); Warrick, supra, at pp. 1016, 1019.) The 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.’” (Warrick, supra, at p. 1016.) There is a relatively low threshold for discovery. (Id. at p. 1019.)

A showing of materiality requires the defendant to set forth a “‘“specific factual scenario”’” of officer misconduct applicable to his or her case that establishes a “‘“plausible factual foundation”’” and articulates a valid theory of admissibility for the information sought. (Warrick, supra, 35 Cal.4th at p. 1019.) A “plausible scenario of officer misconduct is one that might or could have occurred.” (Id. at p. 1026.) The factual scenario may, depending on the circumstances of the case, consist of a denial of the facts contained in the police report. (Id. at pp. 1024–1025; Garcia v. Superior Court (2007) 42 Cal.4th 63, 71 (Garcia).) The trial court does not determine whether the defendant’s version of events is persuasive. (Warrick, supra, at p. 1026.) “[T]he trial court looks to whether the defendant has established the materiality of the requested information to the pending litigation.” (Ibid.) “[G]ood cause” requires the defendant to (1) propose a defense or defenses to the pending charges, and (2) how the proposed discovery would support the defense or defenses or impeach the officer’s version of events. (Id. at p. 1021.)

We review a trial court’s ruling on a Pitchess motion for abuse of discretion. (People v. Jackson (1996) 13 Cal.4th 1164, 1220–1221.) That discretion is broad. (People v. Samayoa (1997) 15 Cal.4th 795, 827.)

We find that the declaration in support of Wilson’s Pitchess motion adequately established good cause for discovery and that the trial court abused its discretion in denying the motion and failing to conduct an in camera hearing. In reaching this conclusion, we follow our Supreme Court’s admonition of the relatively low threshold for discovery. (Warrick, supra, 35 Cal.4th at p. 1019.) The charges against Wilson derived from Wilson’s alleged jail attack on Hogan with a deadly weapon. The declaration denied the facts in the police reports, stating that Wilson did not attack or cut Hogan. It further states that at least one other witness would so testify. This evidence established a defense to the pending charges that Wilson did not commit the crime. It was the deputies’ reports that established that he did. It was a plausible factual scenario that the deputies fabricated their reports. Regardless of the likelihood of such fabrication, it is certainly one that “might, or could have, occurred.” (Id.at p. 1026.) The fact that there was nothing to indicate a motive for the deputies to fabricate their report is not determinative. “A Pitchess motion need not... provide a motive for the alleged officer misconduct.” (Id.at p. 1025.)

The second requirement for finding good cause requires showing how the proposed discovery would support the defense or defenses or impeach the officer’s version of events. (Warrick, supra, 35 Cal.4th at p. 1021.) The most credible testimony establishing Wilson’s guilt was that of the two deputies, who were percipient witnesses to the crimes. Evidence that they had previously engaged in preparing false reports or other similar misconduct would undermine their credibility and the entire case.

The trial court, however, found significance in the fact that the victim’s version of events corroborated the officer’s version. But this is additional evidence against Wilson that the jury was required to evaluate. It does not negate his defense that he did not commit the crimes. Moreover, it is doubtful that the testimony of Hogan, also an inmate with a criminal record, would carry the same weight with jurors as that of the two officers in charge of the inmates.

The trial court concluded, and the People now argue, that the declaration in support of the motion is deficient because it failed to provide an alternative plausible factual scenario. But it is not required that an alternative scenario be presented. “[T]he scenario may be a simple denial of the accusations in the police report or an alternative version of what might have occurred.” (Garcia, supra, 42 Cal.4th at p. 72, italics added.) Moreover, where the defendant, simply defends on the ground that “I did not do it, ” as here, he may have no idea how the crime was committed or by whom. It is thus impossible for such a defendant to declare an alternative version of the incident.

F. Overbroad or ambiguous requests

The People argue that even if we find that the trial court erred in failing to conduct an in camera hearing, most of the information Wilson requested was not discoverable. We agree that much of the requested information was not discoverable for a myriad of reasons.

The information requested in a Pitchess motion must be described with sufficient particularity to insure that the request is not so broad as to garner all information obtained by the People in investigating the crime and is related to the misconduct. (Warrick, supra, 35 Cal.4that p. 1021.) Overbroad requests are impermissible. (See People v. Jackson, supra, 13 Cal.4th at p. 1220; City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1150.)

Category 2 of the requested information seeks “[v]erbatim copies of all statements, written or oral, ” made by persons who filed complaints against Deputies Murad or Leos relating to “false reports, perjured testimony, lying and untruthfulness.” This request does not specify that the statements sought must be related to the complaints sought, rather than to any other complaint the person may have filed against the named officers. On remand, this category must be interpreted to only seek statements related to the type of complaints that are the subject of the request.

The trial court may not disclose complaints more than five years old, “conclusions of any officer” who investigates a citizen complaint of police misconduct, or facts “so remote as to make [their] disclosure of little or no practical benefit.” (Evid. Code, § 1045, subd. (b); see City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 9.) Categories 1 and 2 are unlimited as to the time, but can only properly seek production of complaints filed five years before the charged incident. Category 3, seeking all investigative reports prepared by members of the Investigating Department, category 4, seeking “all records of statements, reputations [sic], or opinions... pertaining to the use of false reports, perjured testimony, lying and untruthfulness” and category 5, seeking all findings, reports, opinions and transcripts of disciplinary actions or proceedings commenced or taken by the deputies relating to the use of false reports, perjured testimony, lying and untruthfulness, are overbroad and not discoverable insofar as they encompass “conclusions of any officer” (Evid. Code, § 1045, subd. (b); City of Los Angeles v. Superior Court, supra, at p. 9).

With respect to the information properly requested, “Typically, the trial court discloses only the names, addresses, and telephone numbers of individuals who have witnessed, or have previously filed complaints about, similar misconduct by the officer. [Citation.] That practice ‘imposes a further safeguard to protect officer privacy where the relevance of the information sought is minimal and the officer’s privacy concerns are substantial. [Citation.]’” (Warrick, supra, 35 Cal.4th at p. 1019; see also Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107, 1112.) Requiring disclosure of information in addition to the names and addresses of complainants would be premature absent a showing the complainants were unavailable for interview or could not recall events. (See City of Azusa v. Superior Court (1987) 191 Cal.App.3d 693, 696–697.) A defendant can move for further discovery if the names of the complainants and contact data prove to be inadequate for the defendant to prove his or her case. (See Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 828–829.) Thus, under most circumstances, the complaints properly sought in category 1 and the statements and other documents properly sought in category 2, would not be provided to the defendant until a showing of inability to independently obtain the information was made.

G. The remedy

Our conclusion that the trial court erred in failing to provide an in camera review of some of the information requested by Wilson does not end our inquiry. Wilson must still demonstrate that he was prejudiced from the denial of discovery. (People v. Memro (1985) 38 Cal.3d 658, 684, disapproved on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) We are unable to conclude that there is a reasonable probability that the discovery sought in this case would have led to admissible evidence helpful to Wilson’s defense. (See People v. Gill (1997) 60 Cal.App.4th 743, 750–751 (Gill).) There may not have been any complaints against the officers for the type of conduct Wilson sought. In that case, Wilson would not have been prejudiced because access to the officer’s file would not have led to any admissible evidence at trial. However, we must consider the possibility that such evidence may exist. Therefore, a special disposition is required in this case.

In Gill, supra, 60 Cal.App.4th 743, we were faced with an identical situation and adopted a procedure appropriate here. There, the trial court had denied the defendant’s discovery request, and on appeal from a judgment of conviction, we found that the defendant had made the requisite showing of good cause, entitling him to an in camera review of the officer’s file. (Id. at p. 750.) We concluded that the proper disposition would be to remand the case to the trial court to conduct an in camera hearing on the discovery motion. If the hearing resulted in no discoverable information, the judgment was ordered affirmed. (Id. at p. 751.) If, however, it yielded discoverable information in the officers’ file, the defendant should be given an opportunity to determine if the information would have led to any relevant, admissible evidence that he could have presented at trial. (See People v. Memro, supra, 38 Cal.3d at p. 684 [“It is settled that an accused must demonstrate that prejudice resulted from a trial court’s error in denying discovery”].) If the defendant was able to demonstrate that he or she was prejudiced by the denial of the discovery, the trial court was to order a new trial. If the defendant was unable to show any prejudice, then the conviction was to be ordered reinstated, and the judgment ordered affirmed. (See also People v. Coyer (1983) 142 Cal.App.3d 839, 844–845.) Our procedural approach in Gill has been approved by our Supreme Court in People v. Gaines, supra, 46 Cal.4th at pages 181–184.

Here too, we cannot say whether there was any discoverable information in Officers Leos’ or Murad’s files. Therefore, we will follow the above described procedure outlined in Gill. Because this case has already been tried, the usual rule of providing the defendant only with the names and contact information for witnesses and complainants would not provide adequate information for Wilson to argue whether he was prejudiced by the denial of discovery. Thus, in this context, we direct the trial court to provide the complaints, statements and other information to which Wilson is entitled, appropriately redacted, without first requiring him to show unavailability or lack of memory of the complainants and/or witnesses. (See People v. Coyer, supra, 142 Cal.App.3d at pp. 844–845: [“‘In its disposition of a criminal case the appellate court is not limited to the more common options of affirmance, reversal or modification of the judgment or order appealed from. The court “may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.” (Pen. Code, § 1260].)’”

II. Section 654 stay

A. Contention

The trial court imposed consecutive three-strike sentences of 25 years to life on each of Wilson’s three convictions. Wilson contends that the sentences were imposed in violation of section 654. He argues that the convictions all arose from the attack on one victim and from the same act. The People concede that the crimes of assault and mayhem occurred during an indivisible course of conduct, but contend that because Wilson possessed the weapon before the attack and injury, he may be separately punished for the possession and the assault. We agree with the People.

Pursuant to agreement, the trial court struck the great bodily injury enhancements.

B. Applicable principles

Section 654 provides in part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a), italics added.) “[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.” (People v. Perez (1979) 23 Cal.3d 545, 551.) A course of conduct that constitutes an indivisible transaction violating more than a single statute cannot be subjected to multiple punishment. (People v. Butler (1996) 43 Cal.App.4th 1224, 1248.) “If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (People v. Perez, supra, at p. 551.) If, on the other hand, “the [defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.)

Whether multiple convictions were part of an indivisible transaction is primarily a question of fact. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) By sentencing Wilson consecutively on the assault charge and mayhem charge, the trial court impliedly found that he had a separate intent and objective with respect to each. We review such a finding under the substantial evidence test (People v. Osband (1996) 13 Cal.4th 622, 730–731); we consider the evidence in the light most favorable to the People and presume the existence of every fact the trier could reasonably deduce from the evidence. (People v. Holly (1976) 62 Cal.App.3d 797, 803). We must determine whether the violations were a means toward the objective of commission of the other. (See People v. Beamon, supra, 8 Cal.3d at p. 639.)

Mayhem is a maliciously accomplished, unlawful act by means of physical force resulting in an injury which “‘deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip....’” (People v. Ausbie (2004) 123 Cal.App.4th 855, 861, disapproved on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228.) An assault with a deadly weapon involves the use of a deadly weapon with the intent and present ability to commit a battery. (People v. Rocha (1971) 3 Cal.3d 893, 899.)

Both offenses charged against Wilson were part and parcel of one objective; to inflict a severe beating on Hogan. It is impossible on these facts to conclude that Wilson entertained multiple objectives, as the assault resulted in one attack, against one victim, and was part of indivisible course of conduct. All of the actions occurred in extremely close temporal proximity. (People v. Evers (1992) 10 Cal.App.4th 588, 603, fn. 10 [temporal proximity, while not determinative on the question of whether there was a single objective, is a relevant consideration].) We find nothing in the record to support the trial court’s implied finding that Wilson harbored multiple criminal objectives that were independent and not incidental violations. The assault with a deadly weapon was nothing more than a means for Wilson to inflict the serious injuries on Hogan. (See People v. Pitts (1990) 223 Cal.App.3d 1547, 1560 [“Defendant was convicted of both mayhem and assault based on one attack on one victim. As the People concede, ‘there was only one act’ and imposition of a consecutive sentence for the assault violated Penal Code section 654. [Citation.]”].) Consequently, execution of sentence on the assault charge must be stayed.

Wilson’s contention that the possession of a deadly weapon and assault charges are also a part of the same indivisible transaction stands on an entirely different footing. A logical inference can be drawn from the evidence that Wilson possessed the deadly weapon before the assault occurred. It was antecedent and separate from his use of the weapon in assaulting Hogan. (See People v. Bradford (1976) 17 Cal.3d 8, 22.) However, section 654 has been found not to apply when the weapon possession preceded the assault. (People v. Wynn (2010) 184 Cal.App.4th 1210, 1217–1218.) The trial court did not abuse its discretion in failing to stay the possession of a deadly weapon count.

DISPOSITION

The judgment is reversed with directions to the trial court to conduct an in camera hearing on Wilson’s discovery motion consistent with this opinion. If the in camera hearing reveals discoverable information which could lead to admissible evidence helpful to Wilson in defense of the charges against him, the trial court shall grant the requested discovery and give Wilson the opportunity to make a showing that the failure to have received this information before trial prejudiced him. If that showing is made, the trial court shall order a new trial. If the showing is not made, or if the in camera hearing reveals no discoverable information in Officers Leos’s and Murad’s personnel files which would lead to admissible evidence helpful to Wilson’s defense, the trial court shall reinstate the original judgment and sentence, except that the sentence on the assault conviction shall be stayed pursuant to section 654 and a corrected abstract of judgment prepared.

We concur: BOREN, P. J., DOI TODD, J.


Summaries of

People v. Wilson

California Court of Appeals, Second District, Second Division
Feb 9, 2011
No. B218296 (Cal. Ct. App. Feb. 9, 2011)
Case details for

People v. Wilson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSEPH LEE WILSON, JR., Defendant…

Court:California Court of Appeals, Second District, Second Division

Date published: Feb 9, 2011

Citations

No. B218296 (Cal. Ct. App. Feb. 9, 2011)