California Court of Appeals, First District, Fifth Division
CERTIFIED FOR PARTIAL PUBLICATION[*]
Superior Court of Contra Costa County, No. 05-110237-5, Thomas M. Maddock, Judge.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Eric D. Share and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Respondent.
Jones, P. J.
The People charged appellant Demetrius Coleman with possession of cocaine base for sale (Health & Saf. Code, § 11351.5). Before the preliminary hearing, appellant moved — pursuant to Pitchess and other authority — for discovery of material in the personnel file of Matthew Stonebreaker, the arresting officer for the City of Richmond (City). Appellant also requested the City police department “run a ‘rap sheet’ on Officer Stonebreaker.” The court conducted an in camera hearing pursuant to Pitchess, reviewed Officer Stonebreaker’s personnel file, and ordered the City to disclose information concerning a “complaint of false identifying information.” The court, however, denied appellant’s discovery motion to the extent it sought Officer Stonebreaker’s birth date and rap sheet.
At the preliminary hearing, appellant moved to suppress. The magistrate denied the motion and the trial court denied appellant’s joint motions to set aside the information and to renew the suppression motion (Pen. Code, §§ 995, 1538.5, subd. (i)). Before trial, appellant moved for an order pursuant to Brady v. Maryland (1963) 373 U.S. 83 (Brady) and Penal Code section 1054.1 requiring the prosecution to, among other things, run rap sheets on all testifying prosecution witnesses. The court granted the motion in part and denied it in part, explaining it would order the People to comply with Brady but would “not order rap sheets to be run on the officers.”
A jury convicted appellant and the court sentenced him to county jail. The court also ordered appellant to pay a $570 drug program fee pursuant to Health and Safety Code section 11372.7, subdivision (a), and $500 in attorney fees pursuant to Penal Code section 987.8, subdivision (b).
On appeal, appellant contends the court erred by: (1) denying his motion to suppress; (2) declining to order the prosecution to disclose Officer Stonebreaker’s “criminal history;” (3) delegating to the probation department the determination of his ability to pay the drug program fee under Health and Safety Code section 11372.7; and (4) ordering him to pay attorney fees pursuant to Penal Code section 987.8 without determining his ability to pay.
In the unpublished portion of the opinion, we conclude the court properly denied appellant’s motion to suppress evidence. We also conclude the court abused its discretion by denying appellant’s discovery motion to the extent it sought Officer Stonebreaker’s criminal history (if any) and that the error was prejudicial. Accordingly, we conditionally reverse the judgment with directions to the trial court to order the prosecutor to run Officer Stonebreaker’s rap sheet as of the date of trial, to conduct an in camera review in accordance with the procedures set forth in Pitchess, and to disclose Officer Stonebreaker’s felony convictions or misdemeanor convictions involving moral turpitude, if any. If there are such convictions, the court must evaluate the evidence in light of the entire record and determine whether to grant appellant a new trial. (See People v. Hayes (1992) 3 Cal.App.4th 1238, 1246 (Hayes); see also People v. Hustead (1999) 74 Cal.App.4th 410, 419 (Hustead).) If there are no such convictions, the court will reinstate the original judgment. If the original judgment is reinstated, the attorney fee order must be reversed because there is insufficient evidence of appellant’s present ability to pay such fees.
In the published portion of the opinion, we conclude the drug program fee must be reversed if the court reinstates the judgment because the court improperly delegated to the probation department the determination of appellant’s ability to pay the drug program fee and because the record does not support an implied finding of his ability to pay. On remand, the trial court must determine appellant’s ability to pay the drug program fee under Health and Safety Code section 11372.7 and attorney fees pursuant to Penal Code section 987.8.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged appellant with possession of cocaine base. Before the preliminary hearing, appellant moved to suppress, claiming the charge was based on “evidence derived from an unreasonable search and seizure.”
Initial Motion to Suppress
At the preliminary hearing, Officer Stonebreaker testified he and Officer Danielle Evans were riding their police bicycles westbound on Bissell Avenue in Richmond at 5:00 p.m. on September 24, 2009. The neighborhood where the officers were riding is “a known drug area” where people buy and sell drugs. Both officers were in uniform.
As they rode, they saw a man they later identified as appellant walking on the sidewalk along Bissell Avenue. The officers rode up to appellant, dismounted, and said, “[W]hat’s up[?]” Appellant stopped walking. Officer Stonebreaker stood about five feet from appellant and asked his name. Appellant gave his name. Then Officer Stonebreaker asked appellant for his date of birth and appellant complied. As Officer Evans ran a warrant check, Officer Stonebreaker talked to appellant, explaining that he and Officer Evans were part of a bicycle unit and were meeting “residents in the area.” According to Officer Stonebreaker, appellant “stopped to talk to us to see what it was. That’s all.” While the officers waited for the warrant check results, they did not direct or command appellant to do anything.
About three minutes — “or a short time” — after the encounter began, the officers received a report that appellant “had a warrant out of Solano County.” Officer Stonebreaker handcuffed appellant. While the officers waited for a vehicle to transport appellant to jail, Officer Stonebreaker saw appellant “adjust his pants a couple of times” and pull out a “clear plastic bagg[ie] containing an off-white chunky substance.” Appellant tossed the baggie behind him; it landed about two or three feet away on the other side of a fence. Officer Stonebreaker retrieved the baggie while Officer Evans put appellant in the patrol car. Officer Evans did not see appellant discard the baggie. When Officer Stonebreaker retrieved the baggie, appellant “became very angry” and “very verbally abusive, and saying whatever we found was not his.” The baggie contained 6.29 grams of cocaine base. Officer Stonebreaker also found $193 in appellant’s pockets.
Carlos English, a homeless man who collects cans in a shopping cart and recycles them, testified he had come into contact with Officer Stonebreaker about 10 times and that he is a “nightmare.” According to English, Officer Stonebreaker digs through his shopping cart full of cans, “turn[s] it over[, ]” and harasses him “for nothing.” Officer Stonebreaker did not recall meeting English, overturning his shopping cart, or investigating him.
After hearing lengthy argument from counsel, the court denied the motion to suppress, concluding the encounter was consensual.
Renewed Motion to Suppress
Appellant filed joint motions to set aside the information and to renew the suppression motion (Pen. Code, §§ 995, 1538.5, subd. (i)). The trial court denied the motions. It noted the officers “did not issue any commands; they did not block [appellant’s] path; they did not display any weapons. The evidence did not reflect a physical touching of [appellant’s] person or a tone of voice indicating that it was mandatory for [appellant] to answer Officer Stonebreaker’s questions. [¶] The encounter occurred in daylight at a seemingly busy location. The public nature of the encounter is arguably increased because the officers were on bicycles — no patrol cars to shield from public view whatever was going on.” Finally, the court concluded the fact that the officers performed a warrant check, by itself, did not transform the encounter into a detention.
Appellant’s Discovery Motions and Requests
Several months before the preliminary hearing, appellant filed a motion for discovery of material in Officer Stonebreaker’s personnel file “indicating... internal and civilian complaints, investigations, or reports in which allegations of corruption, illegal arrests and/or searches, the fabrication of charges and/or evidence, acts of harassment or malicious conduct against citizens, dishonesty and improper tactics... or false arrest.” The motion also requested the Richmond Police Department “run a ‘rap sheet’ on Officer Stonebreaker.” Appellant brought the motion pursuant to Pitchess, Brady, and Evidence Code sections 1043, 1045, and 1046. Defense counsel’s supporting declaration averred appellant did not possess narcotics on the day of the incident and did not “toss a bag of cocaine from his person.” Counsel stated the City, the Richmond Police Department and/or the Contra Costa County District Attorney’s Office possessed the materials and that there was good cause to produce them because Officer Stonebreaker had a “tendency to fabricate incident reports and initiate detentions without reasonable suspicion.”
The City opposed the motion, arguing: (1) appellant had not demonstrated the confidential information regarding Officer Stonebreaker’s prior conduct was material to the issues at the preliminary hearing; and (2) it “d[id] not have actual possession of criminal history records” and was not required to search for them.
Following a hearing, the court indicated it would examine Officer Stonebreaker’s personnel file for “dishonesty in terms of falsifying information.” The court declined, however, to “order a CNI rap sheet run on the officer” and declined “to give the date of birth of the officer” to defense counsel because it determined the rap sheet and birth date were “something that’s reserved for trial.” The court then conducted an in ...