People v. Johnson CA2/6

Filed 1/7/14 P. v. Johnson CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B244941
(Super. Ct. No. BA397476)
Plaintiff and Respondent, (Los Angeles County)
v.
MATTIE JOHNSON,
Defendant and Appellant.
Mattie Johnson appeals from the judgment following her conviction by jury
of possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and sale of a
controlled substance (Health & Saf. Code, § 11352, subd. (a)). Appellant admitted
allegations that she had one prior serious or violent felony strike and served six prior
prison terms. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd.
(b).)1 The trial court sentenced her to 10 years in prison.
Appellant contends the court erred by admitting evidence concerning her
employment and housing status, and by failing to order the disclosure of personnel
records of the officer who searched her. The trial court ordered the disclosure of other
officers' files. (Pitchess v. Superior Court (1974) 11 Cal. 3d 531 (Pitchess).) She also
requests we independently review the trial court's in camera proceedings of other records;
1 After the jury returned its verdicts, the court dismissed four of the section 667.5,
subdivision (b) prior prison term enhancements.
we have done so. There is no error in the proceedings. We reject her evidentiary claim
but conclude the court erred by failing to examine records of the searching officer. We
conditionally reverse and remand to the trial court with directions to conduct an in
camera review of such records. If the court finds a matter that should be disclosed, it
shall disclose it, and grant a new trial, if appellant can show prejudice. Otherwise, the
court shall reinstate the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
Los Angeles Police Department (LAPD) Officer Humberto Moreno and his
partner, Officer Eduardo Ojeda, were assigned to a task force in skid row. Skid row
includes the area surrounding 6th and Gladys Streets where homeless people and others
regularly gather to use, buy and sell drugs.
On May 7, 2012, at 9:30 p.m. Moreno, a narcotics officer, stood on a
rooftop, looking through binoculars, toward 6th and Gladys Streets. He saw appellant
under a street light on Gladys Street, sitting on a milk crate. Cornell Chicquelo sat
nearby, and talked with her, while he looked up and down the street, as if watching for
police officers. Appellant pulled a small bindle from the left breast area of her shirt. She
placed the bindle on a folding chair that faced her, made a "cutting motion," and returned
something to her front right jacket pocket. Clarence Conway approached appellant and
gave her paper currency. Appellant took something from her right front jacket pocket
and gave it to Conway. He walked away, put something in a glass pipe, lit it, and started
smoking.
Moreno, Ojeda and other officers detained appellant, Conway, and
Chicquelo. They recovered a glass pipe from Conway, and found a razor blade and
makeup compact on the folding chair that had faced appellant. The surfaces of the pipe,
the compact and the razor blade bore an off-while solid substance resembling cocaine
base. Ojeda located a mesh backpack between appellant and the folding chair. The
backpack contained three cell phones and $116 in cash ($20, $10, $5 and $1 bills).
Officer Samantha Townsend searched appellant and felt a hard object in her left bra cup.
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Appellant made an unsuccessful attempt to struggle away. Townsend recovered a black
plastic bindle containing 25 off-white solid pieces, of varying sizes, that resembled
cocaine base. Similarly sized pieces of cocaine base would cost $10 or $20 each. The
bindle's contents weighed 3.49 grams and tested positive for cocaine base.
Moreno testified that dealers can sell cocaine base more quickly by cutting
it into small portions of various sizes and carrying small denominations of money to
easily make change. He testified that 3.49 grams of cocaine base exceeds the expected
amount for personal use, and that drug dealers often carry several phones to communicate
with suppliers and lookouts. Moreno opined that appellant was selling cocaine base to
Conway. He cited several factors that led to his opinion, including his expertise as a
narcotics officer, his observations of appellant's conduct in an area with high narcotics
activity, as well as the amount and nature of the money, cocaine, and other items
recovered upon her arrest.
Defense Case
Appellant testified and denied she sold cocaine to Conway on May 7, 2012.
Conway gave her $1 in exchange for a cigarette. She was only using cocaine. She
denied carrying $116, or several $10, $5 and $1 bills. She said she had about $221,
including $220 from her roommate, who gave her no bills smaller than $20. She denied
using or possessing a razor blade or makeup compact. She also testified she could not
sell cocaine because she was an addict.
Chicquelo testified he was getting high with appellant on May 7. He saw
her give Conway a cigarette, but did not see him pay appellant.
DISCUSSION
The Trial Court Did Not Erroneously Admit Evidence of Appellant's
Employment and Housing Status
We reject appellant's claim that the trial court erred by admitting evidence
concerning her employment and housing status which improperly suggested that poverty
and homelessness motivated her to sell cocaine. This claim concerns brief answers to a
few questions the prosecutor asked Moreno. Moreno testified he believed appellant was
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not employed, and did not know where she lived. However, the jury learned of
appellant's poverty for the first time in appellant's opening statement, when counsel said
the jury would "hear . . . that she had money on her, but her money was from her general
relief check." The prosecutor's opening statement did not mention appellant's poverty,
employment, her residence or her presence in skid row. Consistent with her opening
statement, appellant testified she was receiving "G.R." and food stamps. She also
testified that she had been homeless.
We conclude appellant invited the claimed evidentiary error concerning her
employment, housing, or financial status. (People v. Gutierrez (2002) 28 Cal. 4th 1083,
1138-1139 [invited error doctrine precluded appellate claim that trial court erroneously
allowed prosecution to impeach defendant with prior assault conviction after the defense
presented evidence of defendant's prior imprisonment for assaulting an officer].)
Furthermore, the challenged evidence was not prejudicial. It was brief, the prosecutor did
not rely upon it in arguing to the jury, and ample other evidence established appellant's
guilt. (People v. Clark (2011) 52 Cal. 4th 856, 929-930.)
Pitchess
Appellant argues the trial court abused its discretion by failing to disclose
Townsends's personnel records with allegations of false reporting and other dishonest
conduct. (Pitchess, supra, 11 Cal. 3d 531.) We agree.
We review the trial court's denial of a Pitchess motion for abuse of
discretion. (People v. Galan (2009) 178 Cal. App. 4th 6, 12.) Discovery of peace officers'
civilian complaints or personnel records requires a motion supported by affidavit
(declaration) showing good cause, including materiality to the proceeding for which
disclosure is sought. (Evid. Code, § 1043, subd. (b).) "This good cause showing is a
'relatively low threshold for discovery.'" (Garcia v. Superior Court (2007) 42 Cal. 4th 63,
70.) If it is satisfied, the superior court reviews the requested materials for relevancy and
consequent disclosure. (Id. at pp. 70-71; Evid. Code, § 1045.)
To establish materiality, the supporting declaration must first propose a
defense to the charges, and explain how the discovery would support it. Counsel also
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must describe a factual scenario of officer misconduct, which may consist of a denial of
the facts stated by the arrest report. The defense scenario must be plausible, in light of
the other documentation. A plausible scenario is one that might or could have occurred.
It must be internally consistent and support the proposed defense. The defendant must
show that the information sought could lead to, or constitute, evidence potentially
admissible at trial. (Garcia v. Superior Court, supra, 42 Cal.4th at pp. 70-71; Warrick v.
Superior Court (2005) 35 Cal. 4th 1011, 1024-1026.)
Appellant's Pitchess motion incorporated Moreno's arrest report as an
exhibit. It stated that "[Moreno] advised Officer Townsend to search [appellant's] left
breast cup. Officer Townsend pa[tt]ed down the left breast. . . . [¶] . . . Officer Townsend
then recovered a black plastic bindle containing 25 off-white solids resembling cocaine
base from [appellant's] left breast cup." "Officer Townsend recognized it as cocaine
base." In her supporting declaration, counsel stated appellant denied selling the cocaine,
or possessing it for sale, and that the arrest report falsely stated the bindle recovered by
Townsend contained 25 small cocaine solids, rather than 3 solids. She declared that
officer credibility was critical to the prosecution case, which was based entirely on the
officers' observations. Counsel planned to defend appellant by showing that Townsend
and other specified officers had a pattern and practice of fabricating arrest reports.
In response to the Pitchess motion, LAPD's counsel argued there was no
good cause to disclose records of any officers except those who "observed [appellant]
selling drugs." The trial court indicated its agreement with that argument, and gave
appellant's counsel time to respond. She submitted the issue, and the court ordered
LAPD to disclose Ojeda's and Moreno's records with allegations of perjury, false
statements, and false reporting.
The court erred by failing to examine Townsend's records. Appellant met
the "relatively low" or "relatively relaxed" good cause showing for their discovery. (City
of Santa Cruz v. Municipal Court (1989) 49 Cal. 3d 74, 83-84; Garcia v. Superior Court,
supra, 42 Cal.4th at p. 70.) It is true Townsend did not observe appellant accepting
money from Conway in exchange for anything. Nevertheless, the arrest report
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establishes she recovered the bindle from appellant and "recognized [its contents] as
cocaine base."
"[T]he proper remedy when a trial court has erroneously rejected a showing
of good cause for Pitchess discovery and has not reviewed the requested records in
camera is not outright reversal, but a conditional reversal with directions to review the
requested documents in chambers on remand." (People v. Gaines (2009) 46 Cal. 4th 172,
180.) Therefore, we conditionally reverse and remand for an in camera hearing.
At appellant's request, we independently reviewed Ojeda's and Moreno's
records. (People v. Mooc (2001) 26 Cal. 4th 1216, 1228-1229.) We find no error in the
court's denial of disclosure.
DISPOSITION
We conditionally reverse the judgment and remand for the trial court to
conduct an in camera review of Townsend's personnel records with allegations of perjury,
false statements, and false reporting. If the trial court finds any records that should have
been disclosed, it shall disclose them, and grant appellant a new trial if she can show
prejudice. Otherwise, the court shall reinstate the judgment.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Kathleen Kennedy, Judge
Superior Court County of Los Angeles
______________________________
Carol S. Boyk, under appointment by the Court of Appeal, for Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Kenneth C.
Byrne, Supervising Deputy Attorney General, Julie A. Harris, Deputy Attorney General,
for Respondent.
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