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People v. Zaldivar

California Court of Appeals, Second District, Fourth Division
Apr 14, 2009
No. B204510 (Cal. Ct. App. Apr. 14, 2009)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Los Angeles County, No. BA321870, Sam Ohta, Judge.

Allison K. Simkin, 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, Theresa A. Patterson and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.


WILLHITE, J.

A jury convicted defendant Luis Zaldivar of one count of selling cocaine (Health & Saf. Code, § 11352, subd. (a)) and found that he had served three prior separate prison terms (Pen. Code, § 667.5, subd. (b)) and been convicted of two prior drug-sale-related offenses (Health & Saf. Code, § 11370.2). The trial court sentenced him to a total term of five years in prison. He appeals from the judgment of conviction, contending that the trial court erred in denying his Pitchess motion without conducting an in camera inspection of relevant police officer personnel records.

We conclude that the court properly denied a review of the records of five officers. As to two officers, however, Officers John Armando and Thomas Brown, we conclude that the court erred in not conducting an in camera review. We therefore reverse the judgment, with directions to the trial court (see People v. Hustead (1999) 74 Cal.App.4th 410, 418-423) to conduct an in camera review of complaints regarding Officers Armando and Brown relating to dishonesty. If the hearing reveals no discoverable information in the officers’ personnel files which would lead to admissible evidence helpful to appellant’s defense, the trial court shall reinstate the original judgment and sentence which shall stand affirmed. If the in camera hearing reveals discoverable information bearing on the officers’ honesty which could lead to admissible evidence helpful to appellant in defense of the charge, the trial court shall grant the requested discovery, allow defendant an opportunity to demonstrate prejudice, and order a new trial if prejudice is demonstrated.

FACTUAL BACKGROUND

On the afternoon of April 29, 2007, Los Angeles Police Officer John Armando was sitting in an undercover surveillance vehicle at Fifth and San Pedro Streets in Los Angeles. The area is in the heart of skid row, and known for sales of rock cocaine. Using binoculars, he observed defendant seated against a building across the street. As Officer Armando watched, another man (identified at trial only as Mr. Powell) sat down next to defendant, and, after a brief conversation, handed defendant a $20 bill. Defendant placed a plastic bindle on the ground next to the man. The man picked it up and walked away on San Pedro. Officer Armando radioed a chase team to detain the man, and observed another officer, Officer Salvador Reyes, detain the man and retrieve the bindle from the man’s hand. The bindle contained eight off-white solids that were later analyzed and found to be.66 grams of cocaine in the form of cocaine base.

Meanwhile, Officer Armando’s partner, Officer Thomas Brown (also using binoculars and in the same vehicle), observed defendant engage in a second transaction. Another man (unidentified at trial) sat down next to defendant and handed defendant a $5 bill. In exchange, defendant handed him a small off-white solid. As the man walked away, Officer Brown observed another officer, Detective Feldtz (no first name given) detain him. He also saw Detective Feldtz bend over and pick something up. Detective Feldtz later gave Officer Armando an off-white solid that was determined to be.07 grams cocaine in the form of cocaine base.

Defendant was arrested by Officer David Chapman and his partner, Officer Cantu (no first name), who recovered $149 and a cocaine pipe from defendant’s pants pockets and $21 from his wallet.

DISCUSSION

Before trial, defendant moved for Pitchess discovery relating to: (1) Officers Armando and Brown, the two officers who observed the two narcotics transactions; (2) Officer Reyes, who detained the first buyer and recovered cocaine base from him; (3) Detective Feldtz, who detained the second buyer and recovered cocaine base; (4) Officers Chapman and Cantu, who arrested defendant and recovered currency and a cocaine pipe from him; and (5) Officer Ziesmer, who is mentioned only in the police report of defendant’s arrest, and who, according to the report, simply read the Miranda rights to the two buyers and defendant. Defendant sought, as here relevant, “all complaints... relating to... fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion and/or probable cause, perjury, dishonesty, writing of false police reports, false or misleading internal reports..., and any other evidence of misconduct amounting to moral turpitude.”

The trial court denied the motion without conducting an in camera review of any personnel records relating to the officers, finding that defendant failed to show good cause for the discovery. Defendant contends that the court erred. We disagree as to Officers Chapman, Cantu, Ziesmer, Reyes and Detective Feldtz. We agree, however, as to Officers Armando and Brown, and remand with directions.

The Motion and the Trial Court’s Ruling

Attached to the Pitchess motion was a copy of the police report concerning defendant’s arrest. Consistent with the trial testimony summarized above, it described the area as being known for narcotics, recounted Officer Armando’s observation of the first transaction in which defendant engaged, and noted Officer Reyes’ recovery from the buyer of a bindle containing off-white solids. According to the police report, this buyer was named Willie Powell.

The report also described Officer Brown’s observations (as related to Officer Armando, the author of the report) concerning the second transaction. The report identified the second buyer as Alonzo Hill. As to this buyer, the report described in more detail than at trial that after detaining Hill, Detective Feldtz asked him to spit out the off-white solid in his mouth. Hill complied, and Detective Feldtz recovered the item.

The police report described defendant’s arrest by Officer Cantu and the recovery of the currency and cocaine pipe from his pockets and additional currency from his wallet. Finally, the report stated, in substance, that Officer Ziesmer advised Powell, Hill, and defendant of their rights, and that each had declined to discuss the case.

In addition to the police report, the motion was supported by a declaration of defense counsel, who stated in relevant part: “I am informed and believe that on April 29, 2007, at approximately 1:10 p.m., defendant was smoking and watching the street activity, as he sat on the sidewalk in the area of Fifth and San Pedro Streets. An older man, presumably Mr. Hill, came over to defendant and asked for his pipe. When defendant refused, the man got angry and left the location. At no time did Defendant exchange money for illegal substances with any person in that area. The officers are fabricating the exchange with Hill and Powell. If Hill and Powell were later detained in possession of any type of drugs, they did not obtain those drugs from defendant.”

The trial court concluded that defense counsel’s declaration did not state good cause for the requested discovery because defendant’s factual scenario did explicitly address the alleged purchase by the first buyer, Powell. As the court stated: “It [counsel’s declaration] doesn’t state any denial or anything except that they’re fabricating about the other person, Mr. Powell.... I agree with the People that he doesn’t satisfy the good-cause requirement because he doesn’t say anything... except a denial. I was there. It didn’t happen.”

Legal Standard

In Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1026 (Warrick), our Supreme Court clarified the standard required to show good cause for Pitchess discovery. At issue here is whether, as required by Warrick, defendant presented a plausible factual scenario for the claimed officer misconduct.

As explained in Warrick, defense “[c]ounsel’s affidavit [in support of the Pitchess motion] must... describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.... [¶] In other cases, the trial court hearing a Pitchess motion will have before it defense counsel’s affidavit, and in addition a police report, witness statements, or other pertinent documents. The court then determines whether defendant’s averments, ‘[v]iewed in conjunction with the police reports’ and any other documents, suffice to ‘establish a plausible factual foundation’ for the alleged officer misconduct and to ‘articulate a valid theory as to how the information sought might be admissible’ at trial. [Citation.]... What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents. [Citation.]” (Warrick, supra, 35 Cal.4th at pp. 1024-1025.) “[A] plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial. Such a showing ‘put[s] the court on notice’ that the specified officer misconduct ‘will likely be an issue at trial.’ [Citation.] Once that burden is met, the defendant has shown materiality under [Evidence Code] section 1043.” (Id. at p. 1026.)

No Plausible Factual Scenario as to Officers Chapman, Cantu, Ziesmer, Reyes and Detective Feldtz

With respect to Officers Chapman and Cantu, who arrested defendant and recovered currency and a cocaine pipe from him, and Officer Ziesmer, who simply read the Miranda rights to the two buyers and defendant, defendant failed to make any showing to justify discovery of their personnel records. He did not deny possessing the currency and cocaine pipe Officers Chapman and Cantu seized from him. Indeed, in referring to his own smoking and to the interaction with the second alleged buyer, Hill, over the use of defendant’s pipe, defendant implicitly admitted possessing the cocaine pipe recovered by Officers Chapman and Cantu. Further, he made no claim of misconduct by Officer Ziesmer, who merely advised defendant and the alleged buyers of their rights. Thus, the trial court was correct in not conducting an in camera hearing with respect to Officers Chapman, Cantu, and Ziesmer – defendant failed to present a plausible factual scenario showing that they engaged in misconduct.

Similarly, as to Officer Reyes, who detained the first buyer (Powell) and recovered cocaine base from him, and as to Detective Feldtz, who detained the second buyer and recovered the rock of cocaine he spit out, defendant’s showing fell short. He did not deny that Powell and Hill possessed cocaine. Indeed, in defendant’s version of events, Hill asked to use defendant’s cocaine pipe. Thus, it could be inferred that before Hill encountered defendant, Hill already possessed the rock of cocaine later recovered by Detective Feldtz. Although defendant claimed that he did not sell whatever cocaine Hill and Powell might have possessed, such showing does not present any plausible scenario of misconduct by Officer Reyes and Detective Feldtz. Therefore, the trial court correctly did not conduct an in camera review of their personnel records.

Plausible Factual Scenario as to Officers Armando and Brown

With respect to the Officers Armando and Brown, who witnessed the two alleged narcotics transactions, the showing in defense counsel’s declaration stated good cause for an in camera review. That review is limited to alleged instances of dishonesty – as described in the motion, complaints relating to “fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion and/or probable cause, perjury, dishonesty, writing of false police reports, false or misleading internal reports..., and any other evidence of misconduct amounting to moral turpitude.”

Defendant presented a plausible explanation for his presence at the scene of the alleged sales that was internally consistent. In an area known for narcotics sales in the heart of skid row in Los Angeles, he was sitting on the sidewalk, smoking his pipe (inferably referring to the cocaine pipe later seized from him), and watching street activity. He denied that he was engaged in selling drugs to anyone. Further, he presented a plausible explanation for the interaction with Hill, the second alleged buyer observed by Officer Brown. According to defendant, Hill asked to use his pipe; when defendant refused, Hill became angry and walked away. As we have noted, because in defendant’s version Hill asked to use defendant’s pipe, it could be inferred that before his encounter with defendant he already possessed the rock of cocaine later recovered by Detective Feldtz. Thus, defendant plainly presented a sufficient factual scenario with respect to Officer Brown to justify an in camera examination of the officer’s personnel records relating to alleged instances of dishonesty.

Although defendant did not expressly deny interacting with Powell, that omission did not eviscerate his presentation of a plausible factual scenario of misconduct by Officer Armando. As stated in Warrick, the required “factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.” (Warrick, supra, 35 Cal.4th at pp. 1024-1025.) Here, defendant denied selling narcotics to both Hill and Powell, claimed that the officers fabricated their observations, and asserted that any narcotics seized from Hill and Powell did not come from him. In the context of defendant’s showing as a whole – that he was merely smoking cocaine in a high narcotics area in the heart of skid row, that he had a non-culpable interaction with one alleged buyer, and that he sold narcotics to no one -- his failure to provide a specific innocent explanation of his alleged narcotics transaction with Powell was not fatal to a showing a plausible factual scenario justifying discovery as to Officer Armando. In substance, defendant claimed that he was smoking cocaine, not selling it, and that he did not sell narcotics to Hill, Powell, or anyone else.

The instant case is distinguishable from People v. Thompson (2006) 141 Cal.App.4th 1312, 1317-1318 (Thompson), on which respondent relies. There, an undercover police officer purchased narcotics from the defendant. The buy money had been photocopied for later identification. (Id. at p. 1315.) Six other officers witnessed the transaction, and two others monitored the wired dialogue between the buyer-officer and defendant. After the transaction, another officer found money on the defendant’s person, and yet another (the 11th involved in the case) confirmed that the money found on defendant was the buy money. (Id. at p. 1317.)

To justify Pitchess discovery, defense counsel submitted a declaration in which he stated that defendant did not possess the buy money and did not engage in a narcotics transaction. He claimed that defendant was arrested simply because he was in an area where arrests were occurring, and that the police attributed the sale to him because they learned he had a criminal record. (Thompson, supra, 141 Cal.App.4th at p. 1317.)

In finding the defense showing inadequate to justify discovery of personnel records of the 11 officers involved, the court reasoned the defendant, rather than presenting a plausible factual scenario of officer misconduct, presented an entirely implausible claim that 11 officers conspired to frame him simply because he was standing without explanation at a particular location. (Thompson, supra, 141 Cal.App.4th at p. 1318.) The court reasoned: “We are aware that Thompson [the defendant] need not present a factual scenario that is reasonably likely to have occurred or is persuasive or even credible. [Citation.] Further, we cannot conclude that Thompson’s scenario is totally beyond the realm of possibility. Thompson’s denials ‘might or could have occurred’ in the sense that virtually anything is possible. [The decision in] Warrick did not redefine the word ‘plausible’ as synonymous with ‘possible,’ and does not require an in camera review based on a showing that is merely imaginable or conceivable and, therefore, not patently impossible. Warrick permits courts to apply common sense in determining what is plausible, and to make determinations based on a reasonable and realistic assessment of the facts and allegations.” (Id. at pp. 1318-1319.)

Here, in contrast to Thompson, defendant’s showing was not merely “imaginable or conceivable”; it was more than “not patently impossible.” (Id. at p. 1318.) Using “common sense,” and “a reasonable and realistic assessment” of defendant’s showing (id. at pp. 1318-1319), it takes no stretch of the imagination to envision defendant sitting on the sidewalk in the heart of skid row, smoking a cocaine pipe, and watching traffic pass. Nor does it stretch the imagination to envision an angry disagreement between defendant and Hill, who was already in possession of a rock of cocaine, over the use of defendant’s cocaine pipe. And it is reasonably conceivable that a smoker of cocaine like defendant was not engaged in selling cocaine to Hill, Powell, or anyone else. Thus, unlike Thompson, the instant case involves a factually plausible explanation for defendant’s presence at the scene of his arrest, a factually plausible explanation for his interaction with one alleged narcotics purchaser, and a factually plausible denial of selling narcotics to the other buyer. As required by Warrick, defendant presented a scenario of misconduct by Officers Armando and Brown “that might or could have occurred,” one that is “both internally consistent and supports the defense proposed to the charges.” (Warrick, supra, 35 Cal.4th at p. 1026.) He was not required to do more.

Finally, as explained in People v. Hustead, supra, 74 Cal.App.4th 410, when the trial court errs in failing to conduct an in camera review of Pitchess discovery, the proper disposition is a reversal with specific directions, as we set forth in our disposition, below. (See id. at pp. 418-423.)

DISPOSITION

The judgment is reversed with directions to the trial court to conduct an in camera review of complaints, regarding Officers Armando and Brown, relating to fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion and/or probable cause, perjury, dishonesty, writing of false police reports, false or misleading internal reports, and any other evidence of misconduct amounting to moral turpitude. If the hearing reveals no discoverable information in the officers’ personnel files which would lead to admissible evidence helpful to defendant’s defense, the trial court shall reinstate the original judgment and sentence which shall stand affirmed. If the in camera hearing reveals discoverable information bearing on the officers’ honesty which could lead to admissible evidence helpful to appellant in defense of the charge, the trial court shall grant the requested discovery, allow appellant an opportunity to demonstrate prejudice, and order a new trial if prejudice is demonstrated.

We concur: EPSTEIN, P. J., SUZUKAWA, J.


Summaries of

People v. Zaldivar

California Court of Appeals, Second District, Fourth Division
Apr 14, 2009
No. B204510 (Cal. Ct. App. Apr. 14, 2009)
Case details for

People v. Zaldivar

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LUIS ZALDIVAR, Defendant and…

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

Date published: Apr 14, 2009

Citations

No. B204510 (Cal. Ct. App. Apr. 14, 2009)