Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BA350668 John S. Fisher, Judge.
Law Offices of Eric Cioffi and Eric Cioffi, under appointment by the Court of Appeal and the California Appellate Project, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, David C. Cook and Charles Lee, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
RELEVANT PROCEDURAL BACKGROUND
On September 1, 2009, a jury found appellant Michael Whetstone guilty of the sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)). Following a bench trial, the court determined that appellant had suffered a prior conviction (Health & Saf. Code, § 11352, subd. (a)). Appellant was sentenced to six years in prison. This appeal followed.
FACTS
A. Prosecution Evidence
On December 12, 2008, Los Angeles Police Department (LAPD) officer Ben McCauley investigated drug sales near the intersection of 7th Street and Ceres in downtown Los Angeles. McCauley worked undercover as a member of a “buy team” that attempted to purchase drugs from street dealers. To facilitate his assigned role as a buyer of drugs, he carried “pre-recorded” $20 and $5 bills, that is, bills he had photocopied before beginning his assignment. Assisting McCauley were LAPD detective Michael Saragueta, and LAPD officers Jose Calderon and Hector Diaz.
Officer McCauley testified as follows: He approached appellant and asked whether appellant knew who was “working, ” that is, selling drugs in the area. Appellant answered, “Yeah. You want a 20?” McCauley understood “20” to refer to $20 worth of drugs. When McCauley answered affirmatively, appellant led McCauley to a location several blocks away, where McCauley found Robert Stepto. Appellant asked Stepto to give McCauley a “dub, ” that is, $20 worth of drugs. At appellant’s request, McCauley gave appellant a pre-recorded $20 bill, which appellant passed to Stepto. After Stepto handed appellant an off-white object resembling rock cocaine, appellant led McCauley away from Stepto. As they walked, McCauley asked, “Did he give us a good piece?” Appellant replied, “Yeah. He’ll give us double next time.” When they had moved some distance from Stepto, appellant gave the object to McCauley and asked “for a piece of the rock.” In response, McCauley offered him a pre-recorded $5 bill. Appellant accepted the offer and took the bill. After McCauley reported the transaction to Saragueta, appellant and Stepto were arrested.
Detective Saragueta testified that on December 12, 2008, he was assigned to act as McCauley’s “cover officer, ” that is, to watch McCauley’s activities. At a distance of approximately 40 feet, he saw McCauley approach and speak to appellant. Saragueta followed appellant and McCauley to Stepto’s location, where Saragueta saw an exchange between appellant and Stepto. After appellant and McCauley walked away from Stepto, Saragueta observed an exchange between appellant and McCauley. Following the exchange, McCauley signaled to Saragueta that a drug transaction had occurred. According to Saragueta, when McCauley left appellant, Saragueta hailed other LAPD officers by radio to arrest appellant and Stepto.
LAPD Officer Fernando Ortega and his partner recovered a pre-recorded $5 bill from appellant when he was arrested. Upon arresting Stepto, LAPD officers found a pre-recorded $20 bill, an additional three dollars, and a glass pipe. Tests disclosed that the object that McCauley obtained from appellant contained cocaine base.
B. Defense Evidence
LAPD Officer David Cho testified that after appellant and Stepto were arrested, he searched Stepto and found a pre-recorded $20 bill. Cho acknowledged that the police report regarding the arrests states that he searched appellant, but testified that he could not recall searching appellant and that he did not prepare the report.
LAPD Officer Jose Calderon testified that he watched a transaction involving appellant, Stepto, and McCauley, and later observed Stepto’s arrest. Calderon did not see whether the transaction actually involved narcotics.
DISCUSSION
Appellant contends (1) that the trial court improperly denied his motion for discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), and (2) that there was instructional error, and (3) that he is entitled to a redetermination of his presentencing custody credits under Penal Code section 4019. For the reasons explained below, we disagree.
A. Pitchess Motion
Appellant contends that the trial court erred in summarily denying his Pitchess motion on the ground that appellant had failed to show good cause for the discovery he sought. We review this ruling for an abuse of discretion. (People v. Galan (2009) 178 Cal.App.4th 6, 12 (Galan).)
1. Governing Principles
Generally, the procedure by which a criminal defendant may obtain access to confidential peace officer personnel records through a Pitchess motion is governed by Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. Under these provisions, “on a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.]... If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citations], ‘the trial court should then disclose to the defendant “such information [as] is relevant to the subject matter involved in the pending litigation.”’ [Citations.]” (People v. Gaines (2009) 46 Cal.4th 172, 179.)
The key issue before us is whether appellant established good cause for his requested discovery. The standards governing this requirement are stated in Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick). There, the defendant was charged with possessing cocaine base for sale. (Id. at p. 1017.) According to the police report, when police officers approached the defendant, who was standing in an area known for narcotics activities, the defendant fled, discarding baggies containing cocaine. (Id. at p. 1016.) The defendant’s Pitchess motion sought disclosure of citizen complaints against the arresting officers for making false arrests, falsifying police reports, or planting evidence. According to the attorney declaration supporting the motion, the defendant had entered the area in question to buy -- not sell -- drugs, that the narcotics dealers dropped their baggies when they saw the officers, and that he ran from the officers only because he feared arrest due to an outstanding parole warrant. (Id. at p. 1017.)
Our Supreme Court explained that to show good cause, “defense counsel’s declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges.” (Warrick, supra, 35 Cal.4th at p. 1024.) “The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses.” (Ibid.) In addition, the declaration “must describe a factual scenario supporting the claimed officer misconduct.” In some circumstances, the scenario may consist of a denial of the facts asserted in the police report. (Id. at pp. 1024-1025.) In other circumstances, more is required. (Id. at p. 1025.) When the trial court receives documents in addition to the police report and the attorney declaration, “the defendant must present [] a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents. [Citation.]” (Ibid.) Generally, “a scenario is plausible [when] it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges.” (Id. at p. 1026.) However, the defendant need not present “a credible or believable factual account of, or a motive for, police misconduct.” (Ibid., italics deleted.)
Turning to the Pitchess motion at issue in Warrick, the Supreme Court concluded that the defendant had offered a plausible factual scenario. The court stated: “The scenario... is internally consistent; it conflicts with the police report only in denying that defendant possessed any cocaine and that he was the one who discarded the rocks of cocaine found on the ground. Those denials form the basis of a defense to the charge of possessing cocaine for sale. Thus, [the] defendant has outlined a defense raising the issue of the practice of the arresting officers to make false arrests, plant evidence, commit perjury, and falsify police reports or probable cause.” (Warrick, supra, 35 Cal.4th at p. 1027.)
Under the principles established in Warrick, a plausible factual scenario must be more than merely possible. In People v. Thompson (2006) 141 Cal.App.4th 1312, 1314 (Thompson), the defendant was charged with the sale of cocaine base. According to the police report, an undercover officer working with a buy team approached the defendant and bought cocaine with pre-recorded bills. (Id. at pp. 1315, 1317.) The defendant’s Pitchess motion sought discovery of citizen complaints regarding fabrication of evidence and falsification of police reports. (Id. at p. 1317.) The attorney declaration supporting the motion asserted that the officers had fabricated the entire transaction. (Ibid.)
After the trial court denied the motion for want of a showing of good cause, the appellate court affirmed, reasoning that the defendant’s scenario explained neither his own conduct nor the officers’ behavior. (Thompson, supra, 141 Cal.App.4th at pp. 1318-1319.) The court stated: “[The defendant] is not asserting that officers planted evidence and falsified a police report. He is asserting that, because he was standing at a particular location, 11 police officers conspired to plant narcotics and recorded money in his possession, and to fabricate virtually all the events preceding and following his arrest.... [¶] [His] denials ‘might or could have occurred’ in the sense that virtually anything is possible. 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.” (Ibid.)
Moreover, under the principles established in Warrick, a defendant fails to establish good cause if his factual scenario, viewed in light of the undisputed facts, does not support a defense to the charges against him. In Galan, the defendant was charged with attempting to elude a police officer while driving recklessly. (Galan, supra, 178 Cal.App.4th at pp. 8-9.) According to the police reports, when motorcycle officers pursued the defendant’s speeding truck, he repeatedly placed the truck in reverse, forcing the officers to take evasive action. (Id. at pp. 9-10.) After the defendant was arrested, he stated during a recorded interrogation that he had backed up his truck twice near the officers without intending to hit them. (Id. at p. 10.) The defendant’s Pitchess motion sought records regarding fabricated evidence and false police reports. (Id. at p. 11.) In the supporting declaration and at the hearing on the motion, defense counsel did not dispute the truth of the defendant’s recorded statements, but argued that the officers had exaggerated the defendant’s misconduct to “‘beef up’” the prosecution’s case. (Ibid.) The trial court summarily denied the motion. (Ibid.)
In affirming, the appellate court determined that the defendant’s “assertion of police misconduct (i.e., that the officers fabricated their need to take evasive action to avoid being struck by [the defendant’s] truck) was not internally consistent because it conflicted with [the defendant’s] own description of his driving.” (Galan, supra, 178 Cal.App.4th at p. 13.) The court further determined that the defendant’s claim that he lacked the intent to hit the officers did not support a defense because no reasonable person would have repeatedly reversed his truck solely to flee from the officers. (Ibid.) The court concluded: “Where, as here, a defendant’s undisputed extrajudicial statements are reasonably consistent with the officer’s description of the crime, discovery of any complaint of prior fabrication is foreclosed. Why? Because, notwithstanding defense counsel’s declaration to the contrary, his client has impliedly acknowledged that the officer has been truthful in his report of the circumstances of the crime.” (Id. at pp. 8-9.)
2. Underlying Proceedings
Here, the police report and testimony at the preliminary hearing set forth a description of the underlying incident essentially identical to that later presented at trial. Following the preliminary hearing, appellant filed a Pitchess motion seeking records regarding prior acts of dishonesty by the buy team (Detective Saragueta and Officers McCauley, Calderon, and Diaz). According to the attorney declaration supporting the motion, appellant did not know or speak to Stepto. On the date of appellant’s arrest, he was standing near 7th Street and Ceres when a man inquired where he could buy drugs. Appellant replied that drugs could probably be bought around the corner on 6th Street because many people were selling drugs there. After the man asked appellant to show him the location, appellant walked with the man to an area on 6th Street. Following their arrival, the man spoke to another male while appellant stood 15 to 20 feet away. When the man rejoined appellant and said that he was leaving, the pair walked together toward their original meeting place, where a friend of appellant’s was waiting for him. Appellant neither asked for money or narcotics nor received any narcotics.
At the hearing on the motion, the prosecutor argued that appellant’s factual scenario was not plausible because he offered no explanation why he possessed the pre-recorded $5 bill when he was arrested. Defense counsel responded: “I’m not denying that there was a [$5] bill found on [appellant]. I think that was given [by] the officer to [appellant] for showing him where narcotics could be purchased, but at no time did [appellant] engage in the transaction involving either [Stepto] or anyone else in this case with respect to the sales of narcotics.” The trial court remarked: “Basically, that would mean that your client [] was a principal as an aider and abettor, rather than a principal as a seller.” Defense counsel submitted the matter without answering the trial court. In denying the motion, the trial court stated: “[Y]our position is [appellant is] an aider and abettor.”
3. Analysis
We see no error in the ruling. As explained below, appellant’s factual scenario, coupled with the undisputed facts, fails to “propose a defense or defenses to the pending charges” (Warrick, supra, 35 Cal.4th at p. 1024), as they establish that he aided and abetted the sale of a controlled substance.
Generally, “[a]ll persons concerned in the commission of a crime, ... whether they directly commit the act constituting the offense, or aid and abet in its commission, ... are principals in any crime so committed.” (Pen. Code, § 31.) To be convicted under an aiding-and-abetting theory, a defendant must “act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citations.]” (People v. Beeman (1984) 35 Cal.3d 547, 560, emphasis omitted.) The existence of the requisite knowledge may be established by circumstantial evidence. (People v. Long (1970) 7 Cal.App.3d 586, 591.) Similarly, the existence of the requisite intent may be shown by “an act which has the effect of giving aid and encouragement, and which is done with knowledge of the criminal purpose of the [perpetrator] aided.” (People v. Beeman, supra, 35 Cal.3d at p. 559.)
In People v. Esparza (1960) 182 Cal.App.2d 656, 657, the appellate court affirmed the defendant’s conviction for the sale of heroin on facts resembling those stated in appellant’s factual scenario or otherwise unchallenged by him. There, the evidence at trial established that an undercover officer asked the defendant to sell him some heroin. The defendant replied that he had none, but he knew where heroin could be purchased. (Ibid.) The defendant led the officer to a restaurant, where the defendant brought the officer into contact with a drug dealer from whom the officer bought heroin. (Ibid.) After the purchase, the officer offered the defendant $5.00. (Ibid.) Although the defendant apparently preferred to receive a portion of the heroin, he accepted $5.00 from the officer. (Ibid.) The appellate court concluded that this evidence was sufficient to support the defendant’s conviction on a theory of aiding and abetting.
As explained above (see pt. A.1., ante), the trial court was authorized to evaluate appellant’s factual scenario “based on a reasonable and realistic assessment of the facts and allegations.” (Thompson, supra, 141 Cal.App.4th at pp. 1318-1319.) Although appellant denied that he had acted as an intermediary between McCauley and Stepto, he admitted that he assisted McCauley by taking him to an area of known drug dealers, and never suggested that McCauley did not buy drugs from Stepto. Appellant’s conduct in aiding McCauley’s transaction, as acknowledged in the scenario, together with the undisputed facts that appellant watched McCauley’s transaction and later accepted $5.00 from McCauley for helping him, supports the reasonable inference that appellant knew that McCauley was buying drugs and intended to facilitate the purchase. Appellant’s scenario raises no contrary inference regarding his knowledge and intent, as it is silent about his state of mind while he assisted McCauley. Accordingly, the trial court did not err in concluding that appellants’ factual scenario showed only that he “was a principal [regarding the offense] as an aider and abettor.”
Appellant contends that his motion was improperly denied because the discovery he sought might have permitted him to impeach the officers on the buy team who testified at trial. However, as our Supreme Court has explained, a Pitchess motion must show how the discovery sought is “impeachment evidence [citations] that would support [the] proposed defenses” asserted in the motion. (Warrick, supra, 35 Cal.4th at p. 1024, italics added.) Because appellant’s scenario established no defense to the charge against him, his Pitchess motion was properly denied. (Galan, supra, 178 Cal.App.4th at p. 13.)
B. Instructional Error
Appellant contends that the trial court erred in failing to instruct the jury sua sponte regarding the defense of entrapment. We reject this contention.
Our Supreme Court has held that a trial court is required to instruct the jury on the defense of entrapment “if, but only if, substantial evidence supported the defense. [Citations.] In California, the test for entrapment focuses on the police conduct and is objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense. [Citation.] ‘[S]uch a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect -- for example, a decoy program -- is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.’” (People v. Watson (2000) 22 Cal.4th 220, 222-223, quoting People v. Barraza (1979) 23 Cal.3d 675, 689-690.)
Here, the record is devoid of evidence that appellant was subjected to such acts. According the prosecution case, McCauley selected appellant at random to approach, and he inquired only whether appellant knew who was “working, ” that is, selling drugs in the area. After appellant determined that McCauley wanted to buy drugs, he led him to Stepto, and later asked for a portion of the rock cocaine McCauley had purchased. Nothing in the prosecution evidence suggested that McCauley pressured appellant in any manner to facilitate the drug transaction. Appellant presented no evidence supporting a different version of his conduct; his defense was limited to attacking the credibility of the prosecution case by identifying inconsistencies in it. As McCauley’s initial request to appellant presented nothing more than “a simple opportunity to act unlawfully” (People v. Barraza, supra, 23 Cal.3d at p. 690) and there was no other evidence of entrapment, no instruction on the defense was required.
Appellant contends that McCauley’s conduct, viewed in context, amounted to entrapment. Generally, in determining whether an officer’s conduct constituted entrapment, a court should not examine the conduct “in a vacuum”; the conduct “should... be judged by the effect it would have on a normally law-abiding person situated in the circumstances of the case at hand.” (People v. Barraza, supra, 23 Cal.3d at p. 690.) Noting that McCauley approached appellant within “Skid Row, ” an area known for illegal drug activity and homelessness, appellant argues that “[a] normal law-abiding citizen surviving in Skid Row is easily induced to aid in the purchase of drugs for some monetary consideration -- the prospect of receiving any money provides both a motive and an unusually attractive reason to engage in criminal conduct.” Appellant further argues that the LAPD has specifically targeted drug addicts in Skid Row -- including himself -- in an effort to make Skid Row safer.
Appellant’s contention fails for want of substantial evidence to support the existence of the special circumstances upon which he relies. There is no evidence that McCauley offered appellant any inducement to facilitate a drug transaction; on the contrary, the record establishes that appellant first raised the issue of payment for his services after the transaction had been completed. Furthermore, no evidence was admitted that the LAPD had specifically targeted addicts within Skid Row or that appellant was an addict. To establish these matters, appellant cites only his own closing argument, which he presented while proceeding in propria persona. As appellant did not testify at trial, his unsworn statements in closing argument do not constitute substantial evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11; People v. Superior Court (Crook) (1978) 83 Cal.App.3d 335, 341.) In sum, there was no instructional error.
Appellant’s briefs incorrectly ascribe some of these statements to the prosecutor. Although the prosecutor asserted in his opening statement that drug transactions were common in Skid Row, he did not suggest that the LAPD targeted addicts in Skid Row. He maintained only that LAPD sent the buy team to Skid Row in response to “complaints about drug dealing.” The sole evidence in the record concerning the LAPD’s tactics within Skid Row came from Officer Ortega. When Ortega was asked whether the LAPD “h[ad] a policy of going after addicts as well as drug dealers, ” he answered, “We enforce the law. We go after drug dealers and anyone in possession of an illegal substance.”
C. Presentence Custody Credits
Appellant contends that he is entitled to a redetermination of his presentence custody credits under Penal Code section 4019. We disagree. At the sentencing hearing on September 1, 2009, the trial court awarded appellant presentence custody credits totaling 274 days, including 91 days of conduct credit. In October 2009, the Legislature amended the provisions of Penal Code section 4019 governing the calculation of conduct credits. (See Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) The bill containing the amendments went into effect on January 25, 2010. Appellant argues that the amended provisions of Penal Code section 4019 apply retroactively to the determination of his presentence custody credits. For the reasons we elaborated in People v. Eusebio (2010) 185 Cal.App.4th 990, 992-996, we reject this contention.
On August 9, 2010, prior to oral argument, we received from appellant a copy of a letter that he had directed to his appellate counsel, requesting that certain issues regarding his presentencing custody credits be raised before us. During oral argument, we asked appellant’s counsel to provide a supplemental brief on the issues to the extent he believed them to be meritorious, and accorded respondent an opportunity to reply. Here, we address the sole contention raised in appellant’s supplemental brief.
The issue regarding the retroactive application of the amendments to Penal Code section 4019 is presently before our Supreme Court in People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.