(Super. Ct. No. SF110946A)
The opinion of the court was delivered by: Duarte, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After the partial denial of a Pitchess motion for access to police personnel records (Pitchess v. Superior Court (1974) 11 Cal.3d 531), and the denial of a suppression motion, defendant Henry Reyes Escarsega pled guilty pursuant to a plea agreement. The agreement called for a stipulated sentence and the dismissal of some charges, in exchange for guilty pleas to possession for sale of methamphetamine and child endangerment, and admissions to a prior strike and service of a prior prison term. (Health & Saf. Code, § 11378; Pen. Code, §§ 273a, subd. (a), 667, subds. (b)-(i), 667.5, subd. (b), 1170.12.) The trial court sentenced defendant to prison for the stipulated term, 10 years and 4 months, and defendant timely appealed.
On appeal, defendant (1) challenges the denial of his suppression motion, (2) challenges the partial denial of his Pitchess motion as to one peace officer, and (3) asks this court to review the records of another peace officer in camera.
We shall uphold the denial of the suppression motion based on the existing record, but conditionally reverse with directions to conduct further proceedings regarding defendant's Pitchess motion.
Defendant's appellate contentions seek review of rulings on two motions that were factually supported in part by the same eight-page police report, which we summarize here. We will summarize additional facts particular to each motion, post.*fn1
According to the report of Officer Frank McCutcheon, he and Officer Paul Huff went to an address in response to reports of narcotics sales. They saw children "coming and going" from the "west" door, and saw defendant and others using that door, which was open and which the officers approached. At that point, Officer McCutcheon "could smell the strong odor of Marijuana coming from the open west door" and "saw Escarsega standing just inside the open front door holding a suspected narcotics bindle in his right hand. Escarsega looked at us and raised his right hand towards his mouth. We [ordered] Escarsega to drop the suspected narcotics bindle as we entered the apartment. Officer Huff attempted to stop Escarsega from getting the suspected narcotics bindle into his mouth. Escarsega's girlfriend [Lavender] Hughes attempted to push us away from Escarsega. Escarsega managed to get the suspected narcotics bindle into his mouth and swallow it. Escarsega was identified and found to be on parole and found to be living there with Hughes and the children. Suspected crystal methamphetamine and marijuana was found within the [children's] reach, [as well as] a scale, and U.S. currency."
The officers had been directed to investigate "835" West Fremont, and although the front of the house was marked "835," the number "837" was on a post near the west door. Various inculpatory items were found on defendant's person and in his residence.
After the partial denial of his Pitchess motion (discussed more fully in part II, post), defendant moved to suppress the evidence found in his residence.*fn2
At the suppression hearing, Officer McCutcheon testified he had extensive experience with narcotics investigations and the packaging of narcotics. He testified that on February 4, 2009, at about 7:40 p.m., he and his partner, Officer Huff, went to 835 West Fremont because Detective Fritts told them about narcotic sales there. They watched the front, or south side, of the house, and could see children coming and going from a door leading to a porch on the west side. He thought he saw "835 on the front of the residence" and identified photographs indicating the number "835" in one place, and "837" in another.
After about 30 minutes to an hour, the officers walked up the driveway, and then went to the door on the west side, where Officer McCutcheon "could smell the strong odor of marijuana." While on the porch, Officer McCutcheon could see into the house, and saw defendant standing "in the doorway, within a few feet of the doorway." The door was wide open, and defendant had a white plastic bindle in his hand, which appeared to be "crystal methamphetamine or rock cocaine." As defendant tried to eat the bindle, the officers entered, ordered him not to eat it, and tried to prevent him from doing so, but failed, partly because Hughes grabbed Officer McCutcheon.
When the officers handcuffed defendant and Hughes, Officer Huff asked defendant if he was on parole or probation, and defendant said he was on parole. The officers then searched him, and the residence. The porch had "837" written on a post, but the officers had not seen that before they saw defendant. The odor of marijuana was not what drew them to the door of the house.
Officer Paul Huff testified, and corroborated that the officers thought they were approaching the door to "835" West Fremont and ...