Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA311874, Frederick N. Wapner, Judge.
Lise M. Breakey, 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, Senior Assistant Attorney General, and Lance E. Winters and Robert S. Henry, Deputies Attorney General, for Plaintiff and Respondent.
ZELON, J.
Appellant Ronald A. Ward appeals for a second time from the judgment entered following his conviction for one count of sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and one count of possession of cocaine base for sale (Health & Saf. Code, § 11351.5). In Ward’s first appeal, we reversed the judgment and remanded the case to the trial court with directions to conduct an in camera review of certain law enforcement personnel files pursuant to Evidence Code sections 1043 and 1045 and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We also instructed the trial court, if it ordered the disclosure of information to Ward following its review on remand, to allow Ward an opportunity to demonstrate prejudice and to order a new trial if it found a reasonable probability that the outcome would have been different had the information been disclosed before trial. The trial court conducted the in camera review and released material relevant to two testifying police officers, but denied Ward’s motion for a new trial based on the newly disclosed evidence. Ward now challenges the denial of his motion for a new trial and the calculation of his presentence custody credits. We affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
A portion of the factual and procedural background is taken from our prior opinion in this matter. (See People v. Ward (2008) 167 Cal.App.4th 252.)
I. Ward’s Trial and Conviction
On November 1, 2006, Los Angeles Police Department Narcotics Officer Alonzo Williams, wearing a one-way transmitter, approached a man named Derrick Sutton on Ceres Street in an area known for drug sales. Sutton asked Williams what he needed, and Williams responded that he needed a dime, or $10 worth of narcotics. Sutton, apparently suspicious of Williams, said he would not make a sale until he saw Williams smoke a pipe of drugs. Williams refused and was beginning to walk away when Ward approached.
As Ward walked past Williams, Sutton said to Ward, “Serve him a dime.” Williams stopped walking and turned toward Ward, who reached into his right pocket and instructed Williams to drop the money on the ground. Williams dropped the money as directed on a green tent, and Ward threw a plastic-wrapped rock of what appeared to be cocaine base. Ward pointed at the item he threw and told Williams that it was right there. Williams picked up the object, walked away, and gave other officers a signal that he had completed a buy.
Officers arrested Sutton and Ward. From Sutton, the police recovered $477 in cash and the marked $10 that Williams had dropped to pay for the drugs he purchased. Police found various bills and two glass pipes on Ward, and they recovered 13 pre-wrapped off-white rocks, approximately the same size as the one given to Williams, that they had seen Ward toss at the time they arrived.
Ward was charged with sale of a controlled substance and possession of cocaine base for sale. Prior to trial, Ward sought to discover information about complaints filed about or investigations of 19 different officers involved in the undercover operation with respect to acts of moral turpitude, including false arrests, planting evidence, illegal searches and seizures, dishonesty, fabrication of evidence, fabrication of police reports, fabrications of probable cause, false testimony, or perjury. After a hearing, the court denied the discovery motion.
At trial, Williams testified about the transaction. He identified Ward as the person who threw the pre-wrapped rock onto the ground and indicated that Ward was standing only a few feet away from him when Sutton instructed Ward to serve him a dime. According to Williams, no one other than Ward and Sutton was in the immediate area at the time of the transaction. Williams further testified that, approximately two to three minutes after the sale, he returned to the scene for a field show-up and identified Ward and Sutton as the two individuals involved in the deal.
Police Detective Vip Kanchanamongkol identified Sutton as the person he searched immediately following the transaction and testified as to the search that he performed. Kanchanamongkol stated that there were other individuals in the area when he arrived on the scene, but none were near Sutton or Ward. He also opined that a person who was observed to sell rock cocaine and who possessed 13 similar packages, $55 in small bills, and two glass pipes in a high narcotics area was likely to possess the drugs for the purposes of sale.
Police Officer Hector Diaz testified that he observed the transaction from across the street. From his vantage point, he watched as Williams and Sutton had a brief conversation, Ward approached and spoke with Sutton and then with Williams, and Williams placed something on a green tent. Diaz then saw Ward throw something to the ground that Williams picked up; Williams walked away and Sutton picked up the item that Williams had placed on the green tent. Diaz directed uniformed officers to come to the scene, and as the patrol cars arrived, he saw Ward walk to a shopping cart covered with a blue tarp and toss an unknown number of off-white solids onto the tarp. Diaz directed Police Detective Sylvia Ruize to recover those items. According to Diaz, no one other than Sutton was within 15 to 20 feet of Ward when he dropped the rock onto the ground or when he discarded the other rocks onto the blue tarp.
At trial, Detective Ruize testified that she arrived on the scene less than a minute after the transaction and that Ward was being detained by other officers when she arrived. She did not see anyone other than police officers within 20 feet of Ward or Sutton as they were being detained. Ruize stated that she walked immediately over to the shopping cart where she observed 13 off-white solids wrapped in plastic on the blue tarp; she photographed the rocks on the tarp and then collected them. Ruize also opined that a person in possession of 13 cocaine rocks, two glass pipes, and $55 in cash in a high narcotics area was likely to possess the drugs for the purposes of sale.
Police Officer Daniel Diaz testified that he arrived on the scene after Sutton and Ward had been arrested and that he found a $10 bill in the money recovered from Sutton which matched the bill photocopied in advance by Williams. Police Officer Michael Simon testified that he and his partner were the ones who detained Ward and searched him at the scene, recovering $54 in cash and two pipes. Criminalist Aaron McElrea testified that the rocks collected by the police were in fact cocaine base.
Sutton was the sole witness to testify for the defense. He previously had entered a no contest plea to a charge of sale of a controlled substance in connection with this case. At trial, Sutton corroborated Williams’ testimony that Williams approached him and asked Sutton to serve him a dime, that Sutton initially declined to make a sale unless Williams agreed to smoke a pipe of drugs, and that, as Williams began to walk away, Sutton directed his worker to serve Williams a dime, or $10 worth of crack cocaine. Sutton also admitted that he collected a $10 bill from the ground after the deal was completed and that he had an additional $477 in cash on him at the time of his arrest. However, Sutton testified that the worker whom he told to serve Williams a dime was not Ward, but was another man known only to Sutton as “D.” According to Sutton, Ward was in the area at the time of the transaction, but Ward did not work for Sutton or have any other dealings with him. Sutton further testified that “D” was one of three men who, along with Ward and Sutton, were detained by the police less than five minutes after the deal took place; however, the police decided to let “D” go and to arrest Ward instead.
Ward was convicted as charged and sentenced to nine years in state prison. At the sentencing hearing, Ward was awarded a total of 366 days of presentence custody credits, consisting of 244 days of actual custody credits and 122 days of conduct credits.
II. Reversal and Remand
In his first appeal, Ward challenged the trial court’s denial of his Pitchess motion. In an unpublished portion of our opinion, we concluded that the trial court abused its discretion in refusing to conduct an in camera hearing concerning records pertaining to Officers Williams and Diaz. (People v. Ward (Oct. 1, 2008, B200354 [opn. certified for partial publication]).) We accordingly reversed the judgment and remanded the matter to the trial court with directions to conduct an in camera hearing on Ward’s Pitchess motion with respect to those two officers. (Ibid.) We further directed that “[i]f the trial court finds there are discoverable records, they shall be produced and the court shall permit Ward an opportunity to demonstrate prejudice and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed. If the court finds there are no discoverable records, the court shall reinstate the judgment of conviction.” (Ibid.) On remand, the trial court ordered the release of information relating to complaints brought against Officers Williams and Diaz.
III. Motion for a New Trial
Following the disclosure of the Pitchess material, Ward filed a motion for a new trial which included supporting declarations from defense counsel and six defense investigators. The declaration from defense counsel stated that two of the complainants, Douglas Mercer and Anthony Woods, could not be located, but that the substance of their written complaints was that Williams seized their money or other personal property during a police search but failed to book the property into evidence. The declarations from the defense investigators described the statements obtained from the other complainants: (1) Lamont Johnson complained that Diaz planted 12 grams of drugs in his apartment and falsified a police report by representing that the drugs belonged to Johnson; (2) Edward Reddeck complained that Diaz conducted a warrantless search of his business based on a false claim of “hot pursuit” and falsely arrested Reddeck for conspiracy to sell drugs despite not finding any drugs in the search; (3) Arnold Lowell complained that Williams and Diaz falsely arrested him for selling methamphetamine and falsified a police report by representing that Lowell sold methamphetamine to Williams; (4) Larry Walker complained that Diaz planted eight or nine rocks on the ground near Walker, destroyed Walker’s pipe, and falsified a police report by representing that he observed Walker drop the drugs on the ground; and (5) Darwin Spears complained that Williams and Diaz were part of an undercover team in which other officers falsely arrested Spears for selling rock cocaine, used excessive force during the arrest, planted a five dollar bill on Spears to support a false drug charge, and seized other money from Spears which was never booked into evidence.
In support of the new trial motion, the defense argued that there was a reasonable probability that the jury would have reached a different verdict had the Pitchess evidence been disclosed prior to trial because the case rested entirely on the credibility of Officers Williams and Diaz as the only testifying witnesses who identified Ward as the perpetrator. In its opposition, the prosecution claimed that Ward’s motion was procedurally defective because the defense had failed to submit affidavits from the actual witnesses by whom the new evidence was expected to be given, as mandated by Penal Code section 1181, subdivision 8. The prosecution also contended that the Pitchess evidence was immaterial to the mistaken identity defense that Ward had pursued at trial.
After hearing the argument of counsel, the trial court denied the motion for a new trial. In support of its ruling, the court reasoned as follows: “The argument was that at the trial the officers made a mistake. They arrested the wrong person. And, in fact, Mr. Sutton, contrary to your statements, [defense counsel], corroborated everything the officer said except that it was a different person. They got the wrong guy. Otherwise, he said they got it exactly right. They didn’t make it up. They didn’t lie. They got it exactly right. It happened just the way they said except it’s the wrong guy. [¶]... [¶] So I don’t think a different result would have been or will be reasonably probable and the motion is denied.” Following the denial of his new trial motion, Ward filed a second timely appeal.
DISCUSSION
Ward raises two arguments in this appeal. First, he contends that the trial court abused its discretion in denying his motion for a new trial based on the newly disclosed Pitchess evidence. Second, he claims that his presentence custody credits must be corrected based on the retroactive application of the recent amendment to Penal Code section 4019.
I. Denial of the Motion for a New Trial
Under Pitchess, a criminal defendant, on a showing of good cause, is entitled to the discovery of information in the confidential personnel records of a law enforcement officer when that information is relevant to defend against a criminal charge. (Pitchess, supra, 11 Cal.3d 531; see also Evid. Code § 1043 et seq.) In People v. Gaines (2009) 46 Cal.4th 172, 176 (Gaines), the California Supreme Court held that “the trial court’s erroneous denial of a Pitchess motion is not reversible per se. Rather, the failure to disclose relevant information in confidential personnel files, like other discovery errors, is reversible only if there is a reasonable probability of a different result had the information been disclosed.”
Accordingly, when a trial court errs in rejecting a showing of good cause for Pitchess discovery and has not reviewed the requested records in camera, the proper remedy, as was previously ordered in this case, is “a conditional reversal with directions to review the requested documents in chambers on remand.” (Gaines, supra, 46 Cal.4th at p. 180.) If, after such a review, the trial court determines that the requested personnel records contain no relevant information, then the trial court is to reinstate the judgment. (Id. at p. 181.) If, on the other hand, the trial court determines that relevant information exists, then the trial court must order disclosure, allow the defendant an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability that the outcome would have been different had the information been disclosed earlier. (Ibid.) Where the defendant is unable to demonstrate a reasonable probability of a different outcome on remand, the trial court shall reinstate the judgment. (Id. at pp. 181-182.)
This standard for granting relief based on the erroneous denial of a Pitchess motion is similar to the standard for deciding a motion for a new trial under Penal Code section 1181. Pursuant to subdivision 8 of that statute, the trial court may order a new trial when “new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.” (Pen. Code, § 1181, subd. 8.) “In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ‘“1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.”’ [Citations.]” (People v. Delgado (1993) 5 Cal.4th 312, 328.)
A trial court’s denial of a new trial motion generally is reviewed for an abuse of discretion. (People v. Staten (2000) 24 Cal.4th 434, 466; People v. Musselwhite (1998) 17 Cal.4th 1216, 1251-1252.) “‘“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’ [Citations.] ‘“[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background.”’ [Citation.]” (People v. Delgado, supra, 5 Cal.4th at p. 328.)
Here, the trial court denied Ward’s motion for a new trial on the ground that there was no reasonable probability that the newly disclosed Pitchess material would result in a different outcome on retrial. The Attorney General argues that the motion was properly denied because the Pitchess evidence concerning alleged police misconduct in other cases was not material to the mistaken identity defense that Ward offered in this case. The Attorney General asserts that Ward never contended at trial that the police intentionally misidentified him as the perpetrator or planted drugs on him during the arrest, but instead limited his defense to a claim that the officers made an honest mistake and arrested the wrong man. Because Ward relied exclusively on a defense of mistaken identity, the Attorney General reasons that Ward is not entitled to a proverbial “second bite at the apple” by proposing a new defense never presented at trial.
Under the circumstances of this case, however, we disagree that Ward was bound by a mistaken identity defense in bringing his motion for a new trial or was precluded as a matter of law from proffering an intentional misconduct defense based on the newly disclosed Pitchess evidence. This is not a case where Ward sought to support his new trial motion with a defense never contemplated until after the trial concluded. Instead, Ward acted in a timely manner to pursue an intentional misconduct defense prior to trial by filing a Pitchess motion for discovery relating to false arrests, planting of evidence, and fabrication of police reports by the testifying officers. Ward effectively was barred from asserting that defense, however, when the trial court erroneously denied the Pitchess motion, depriving Ward of any evidence from which he could plausibly argue that the police had deliberately misidentified him as the perpetrator.
Moreover, contrary to the Attorney General’s characterization, the intentional misconduct defense that Ward proffered in support of his new trial motion was not wholly incompatible with the evidence that he presented at trial. Ward’s defense at trial was that he was present near the scene of the drug sale, but was not the perpetrator. The only evidence that he offered in support of that defense was the testimony of Sutton, who stated that the police arrested the wrong man. However, Sutton did not offer any opinion as to why the officers arrested the wrong man – whether it was the result of intentional misconduct, reckless indifference, or an honest mistake. Sutton simply testified that the worker who sold the drugs for him was not Ward, but was another individual named “D.” Because Ward lacked any evidence to support a claim that the police lied when they identified him as the perpetrator, defense counsel took the position at trial that the officers must have made a mistake.
It is true, as the Attorney General suggests, that the trial court must decide whether there is a reasonable probability of a different outcome “on the evidence actually before the court” at the time of the new trial motion, “not on the basis of evidence that might be developed” on retrial. (People v. Beeler (1995) 9 Cal.4th 953, 1004.) This means, for instance, that Ward could not prevail in his new trial motion by asserting that he would take the stand at a new trial and testify that the police planted drugs or money on him and deliberately misidentified him as the perpetrator. On the other hand, Ward should not be precluded from pursuing a different theory of the case based on the newly disclosed evidence, provided that his new defense is not entirely inconsistent with the prior evidence that he presented at trial. We see no such inconsistency here.
The question remains, however, whether the Pitchess evidence of prior police misconduct was such as to render a different result reasonably probable on retrial of the case. (People v. Gaines, supra, 46 Cal.4th at pp. 181-182.) Ward contends that the Pitchess evidence is sufficient to demonstrate a reasonable probability of a different result because the jury’s verdict turned entirely on the credibility of the testifying witnesses. As framed by Ward, the jury had to decide whether to believe the testimony of Officers Williams and Diaz that Ward was the individual who sold Williams the drugs, or the testimony of Sutton that it was his worker “D” who sold the drugs and that Ward was not involved. Ward reasons that the Pitchess evidence that both Williams and Diaz had made false arrests, prepared false police reports, and fabricated evidence in other drug cases renders it reasonably probable that the jury would have chosen to believe Sutton over the officers in this case. Based on the totality of the evidence presented at trial, however, we conclude that a different result on retrial is not reasonably probable.
First, it is not reasonably likely that a jury would infer from the evidence offered by Ward at trial that Officers Williams and Diaz were lying about Ward’s involvement in the drug deal. Sutton was the sole witness to testify for the defense. Notably, he corroborated the officers’ testimony about the details of the transaction in all aspects but one – the identity of the worker who sold Williams the single rock of cocaine. Indeed, consistent with the testimony of both Williams and Diaz, Sutton admitted that Williams approached him and asked for a dime, that Sutton initially told Williams he would have to take a hit off the pipe because Sutton did not know him, that Sutton directed his worker to serve Williams a dime despite Williams’ refusal to smoke any drugs, and that Sutton retrieved the $10 bill that Williams dropped onto the ground. For a jury to reach a different verdict on retrial, it would have to believe that Williams and Diaz were entirely truthful about every other aspect of the transaction, but either intentionally lied or were recklessly indifferent about the identity of Sutton’s worker. Sutton further testified at trial that officers actually detained his worker “D” along with Ward and a few other individuals immediately after the deal, but decided not to arrest “D” and to arrest Ward instead. Thus, to render a different verdict, the jury also would have to believe that the actual perpetrator was part of the field line-up shown to Williams at the scene, and that Williams consciously chose to identify an innocent man and to allow a guilty man to go free. Given the implausibility of such a finding, Ward cannot show that a different result would be probable on retrial even if the Pitchess evidence was presented to the jury.
Second, Officers Williams’s and Diaz’s identification of Ward as one of the two individuals involved in the drug sale was supported by the testimony of other witnesses. At trial, both Williams and Diaz testified that Ward was the individual who provided Williams with the pre-wrapped rock and that no one other than Ward and Sutton was in the immediate vicinity at the time of the transaction. Two other officers corroborated this testimony at trial. Specifically, Detective Ruize testified that she arrived on the scene less than a minute after the deal was completed and that there were no other civilians within 20 feet of Ward or Sutton when she arrived. Detective Kanchanamongkol similarly testified that when he arrived on the scene, he saw some other individuals in the area, but none were near Ward or Sutton. This corroborating testimony that only Ward and Sutton were present at the scene immediately following the crime supported a finding that Williams and Diaz correctly identified Ward as one of the two perpetrators.
Third, the uncontested evidence that Ward discarded 13 rocks of cocaine as officers arrived on the scene also supported a finding that Ward was involved in the sale of drugs. Officer Diaz testified that he observed Ward toss off-white solids onto a shopping cart when patrol cars started to arrive, and it is undisputed that the police recovered 13 individually wrapped cocaine rocks, approximately the same size as the one sold to Officer Williams, from the cart shortly after the sale. Ward is not claiming on appeal that the police planted this evidence, but rather is contending that someone else discarded the drugs and Diaz either deliberately or recklessly misidentified Ward as the perpetrator. However, none of the evidence offered at trial supported this theory. The only defense witness, Sutton, never testified that someone other than Ward tossed additional drugs onto a shopping cart as officers arrived on the scene. In fact, Sutton did not provide any testimony about the source of the 13 rocks recovered by the police. Rather, Sutton simply testified that someone other than Ward sold a single rock of cocaine to Williams during the undercover deal. As for the purpose of the additional drugs, Detectives Ruize and Kanchanamongkol offered their expert opinion that a person in possession of 13 cocaine rocks in a high narcotics area was likely to possess those drugs for sale rather than for personal use. Such testimony supported the inference that Ward was directly involved in the sale of illegal drugs, as described by both Williams and Diaz.
Finally, the probative value of the Pitchess evidence was minimal. The Pitchess evidence concerned allegations by seven prior arrestees that Officers Williams and Diaz had engaged in intentional misconduct by making false arrests, fabricating evidence, and preparing false police reports in other drug cases. However, none of the evidence offered at trial supported a finding that these officers had engaged in any intentional misconduct in this case. As discussed, the sole evidence presented by the defense was Sutton’s testimony that the police arrested the wrong man, but Sutton never suggested that the police did so deliberately.
Considering the totality of the evidence at trial, the Pitchess evidence was not sufficiently probative to render a different result on retrial reasonably probable in this case. The trial court accordingly did not abuse its discretion in denying Ward’s motion for a new trial based on the newly disclosed Pitchess evidence.
In light of our conclusion that Ward’s new trial motion was properly denied on the ground that there was no reasonable probability of a different result, we need not address the Attorney General’s argument that the motion was procedurally defective in failing to provide affidavits of the witnesses by whom the new evidence was expected to be given, or Ward’s counter-argument that any such procedural defect in the motion was the result of ineffective assistance of counsel.
II. Calculation of Presentence Custody Credits
On appeal, Ward also contends that he is entitled to the benefit of the increased custody credits specified in the recent amendment to Penal Code section 4019 (Stats. 2009, 3d Ex. Sess., ch. 28). We agree and modify the judgment.
On July 2, 2007, the trial court sentenced Ward to a total of nine years in state prison. At the sentencing hearing, Ward was awarded 366 days of presentence custody credits, consisting of 244 days of actual custody credits and 122 days of conduct credits, pursuant for former Penal Code section 4019. Former Penal Code section 4019 provided that an inmate was deemed to have served six days for every four days actually in presentence custody unless the inmate failed to perform assigned work or abide by the facility’s reasonable rules and regulations. (Former Pen. Code, § 4019, subds. (a)(4), (b), (c) & (f), as amended by Stats. 1982, ch. 1234, § 7; see People v. Fry (1993) 19 Cal.App.4th 1334, 1341.)
Effective January 25, 2010, and generally subject to the same conditions as before the amendment (with exceptions not relevant here), Penal Code section 4019 specifies that an inmate is to receive two days of conduct credit for every two days of actual presentence custody. (Pen. Code, § 4019, subds. (a)(4), (b)(1), (c)(1) & (f).) If sentenced under the current version of Penal Code section 4019, Ward would be entitled to a total of 488 days of presentence custody credits, consisting of 244 days of actual custody credits and 244 days of conduct credits in this case.
The Courts of Appeal that have addressed the issue have disagreed whether the amendment to Penal Code section 4019 is to be applied retroactively. The issue is currently pending before the California Supreme Court in People v. Brown, review granted June 9, 2010, S181963. We conclude, as have a majority of the courts deciding the issue, that Penal Code section 4019, as amended, constitutes an amendatory statute mitigating punishment under In re Estrada (1965) 63 Cal.2d 740, and as such, must be applied retroactively. The additional presentence custody credits mandated by the amendment therefore apply to all individuals whose judgment had not yet become final on the effective date of the amendment. Unless instructed otherwise by the Supreme Court, we apply the current provisions of Penal Code section 4019 to individuals such as Ward
DISPOSITION
The judgment is hereby modified to award Ward a total of 488 days of presentence custody credits, consisting of 244 days of actual custody credits and 244 days of conduct credits. In all other respects, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: PERLUSS, P. J., WOODS, J.