APPEAL from a judgment of the Superior Court for Los Angeles County, John T. Doyle, Judge. Affirmed. (Los Angeles County Super. Ct. No. TA089340).
The opinion of the court was delivered by: Willhite, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Warees Beyah was convicted of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), and was sentenced to eight years in state prison. He appeals from the judgment, contending he received ineffective assistance of counsel and that the trial court erred by instructing the jury with a consciousness of guilt instruction. He also asks us to independently review the sealed transcript of the in camera hearing on his Pitchess motion*fn2 to determine whether the trial court disclosed all relevant complaints made against the deputies involved in his arrest. We affirm the judgment. We address only the consciousness of guilt instruction in the published portion of our opinion.
Two versions of the facts were presented at trial: one told by the deputies who arrested defendant, and the other told by defendant. We begin with the version told by the deputies, which was, for the most part, accepted by the jury.
At approximately 9:40 a.m. on December 8, 2006, Los Angeles County Sheriff's Department Deputies Nader Chahine*fn3 and Alex Topete were on patrol in Compton. As they approached Atlantic Plaza -- a strip mall at the corner of Atlantic and Compton Boulevard -- they saw a Honda Accord turn into the driveway for the Plaza and park in a parking stall. They noticed that the left taillight (or brake light) was not working; it did not light up when the brakes were applied. Deputy Chahine, who was driving, stopped the patrol car behind the Accord, walked to the car, and asked the driver for his license. The driver was defendant. Defendant told Deputy Chahine that he did not have a license. The deputy told defendant to get out of the car.*fn4 He conducted a pat down search of defendant and found a bundle of money*fn5 and a baggie containing four packages of what was determined to be cocaine base in defendant's pants pockets. The deputy then conducted a search of defendant's car and found a baggie with 29 packages of what was determined to be cocaine base in the gas cap compartment. Based upon the deputy's training and experience, and the fact that the area in which defendant had parked was a high narcotics activity area, he concluded that defendant possessed the cocaine for sale.
Defendant's version of the facts was entirely at odds with the deputies' version. According to defendant, he drove his Honda Accord to Atlantic Plaza, arriving at around 7:00 a.m. on the day in question. He went into the doughnut shop there and bought coffee. He "lounged around" the doughnut shop for a while (on direct examination he said he was there for 20 to 30 minutes, but on cross examination he said he was there for around 45 minutes). At around 8:00 a.m., he went to the nearby Dominguez Food Warehouse to purchase laundry soap, bleach, and other items, because he planned to do his laundry at the laundromat at the Plaza. He was in the Food Warehouse for about 15 minutes, then went back to the doughnut shop to buy cigarettes, a lighter, and chewing gum. He spent some time talking to the women in the doughnut shop, then, at around 9:00, he went to his car and put the items he purchased at the Food Warehouse in the trunk. After putting the items in the trunk, he stood on the sidewalk in front of the laundromat and smoked a cigarette. Once he finished smoking, he walked toward his car to get his laundry from the trunk. As he approached his car, the deputies drove up in their patrol car, asked him what he was doing, and asked for his name. After he responded, the deputies got out of their car and told him to lean against the patrol car while they patted him down. They did not find anything, but nevertheless placed him in the back seat of their patrol car. One of the deputies told him he was going to write him a ticket for loitering, then "out of the blue" he asked defendant if the Honda Accord was his. Defendant told them it was, and the deputy asked for permission to search it. Although defendant did not give his permission, the deputies searched the car. Defendant did not see the deputies recover anything, but after the search, they handcuffed defendant, told him to get out of the car, and searched his pockets, recovering money, a cell phone, a key, cigarettes, and a lighter.
Defendant testified that the money in his pocket was from a settlement of a personal injury lawsuit. He said he received $1,200 in late November 2006, and used some of that money to buy the Accord and some clothing. He bought the car about two weeks before he was arrested, and testified that he knew the brake lights were working because he saw the prior owner drive the car the same night he bought it.
Defendant was charged by information with two counts: count 1, possession for sale of cocaine base (Health & Saf. Code, § 11351.5); and count 2, transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)). The information also alleged a prior conviction under the Three Strikes law (Pen. Code, §§ 1170.12, subd. (a)-(d) and 667, subd. (b)-(i)), and four prior prison terms under Penal Code section 667.5, subdivision (b).
Before trial, the trial court granted defendant's Pitchess motion (limited to a period of five years), but after conducting an in camera hearing, determined there were no relevant complaints filed against the deputies during the period at issue. That same day the court also conducted a hearing on defendant's motion to suppress evidence found during the deputies' search of defendant and his car. Deputy Chahine and defendant testified at the hearing. The court denied the motion, finding defendant's testimony not credible, and concluding that the deputies had probable cause to conduct a lawful investigation, and that there was no unreasonable detention.
At the start of the second day of trial, after the jury had been selected but before opening statements, defense counsel asked for a continuance. She told the court that she had recently discovered there was a mistake in the police report --the date of the arrest was incorrectly written as "12-8-02" on the top portion of the first two pages of the report, although it correctly refers to 2006 in the handwritten portion of the report on the bottom of the first page -- and her investigation had been impaired due to that mistake. She explained that she wanted to establish that the brake light on defendant's car was working at the time of the arrest, to raise questions about the deputies' credibility, and therefore she needed to contact the person who bought the car from the impound yard to question him or her about the condition of the brake light. Her investigator previously had been unable to locate the new owner because, based upon the incorrect date in the police report, the person at the impound yard claimed there were no records of the car. Upon discovering the mistake (the morning of the second day of trial), the investigator called the impound yard back and learned that they do have records for the car. Defense counsel asked for a continuance to give her time to locate the new owner. The trial court denied the request because (1) the investigator should have noticed the different dates on the police report and should have checked both dates with the impound yard; (2) it was highly speculative that the new owner would have any recollection of the condition of the brake light when he or she bought the car; and (3) defense counsel did not show that the evidence sought would be material or that it could be found in a reasonable time.
The trial went forward, and the jury found defendant guilty of count 2 (transportation of a controlled substance) and the lesser included crime of possession of cocaine on count 1.*fn6 A month later, before sentencing, defendant moved for a new trial and asked for a continuance to allow counsel to contact and obtain affidavits from the new owners of defendant's car. The trial court denied the request for a continuance, finding a lack of diligence on the part of defense counsel in locating the witness, and denied the motion for a new trial. The court sentenced defendant to the low ...