California Court of Appeals, First District, Fifth Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
Superior Court of Contra Costa County, No. 05-110237-5, Thomas M. Maddock, Judge.
[Copyrighted Material Omitted]
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.
The People charged appellant Demetrius Coleman with possession of cocaine base for sale (Health & Saf. Code, § 11351.5). Before the preliminary hearing, Coleman moved — pursuant to Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83 S.Ct. 1194] (Brady) and Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305] (Pitchess) — for discovery of material in the personnel file of Richmond Police Officer Matthew Stonebreaker, the arresting officer. Coleman also requested the City of Richmond Police Department (Police Department) “run a ‘rap sheet’” — a colloquialism for record of arrests and prosecution — on Officer Stonebreaker. The court partially granted the motion. It conducted an in camera hearing pursuant to Pitchess, reviewed Officer Stonebreaker’s personnel file, and ordered the City of Richmond (City) to disclose information concerning a “complaint of false identifying information.” The court, however, denied the motion to the extent it sought Officer Stonebreaker’s birth date or rap sheet. The court also denied Coleman’s motion for reconsideration.
Coleman moved to suppress at the preliminary hearing. The magistrate denied the motion. The trial court denied Coleman’s motion to set aside the information and his renewed suppression motion (Pen. Code, §§ 995, 1538.5, subd. (i)). Before trial, Coleman moved for an order pursuant to Brady and 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 Coleman of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and the court sentenced him to county jail. The court also ordered Coleman to pay a $570 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)), and $500 in attorney fees (Pen. Code, § 987.8, subd. (b)).
On appeal, Coleman contends the court erred by: (1) denying his motion to suppress; (2) declining to order the prosecution to run Officer Stonebreaker’s rap sheet; (3) delegating to the probation department the determination of his ability to pay the drug program fee pursuant to Health and Safety Code section
11372.7; and (4) ordering him to pay attorney fees pursuant to section 987.8 without determining his ability to pay.
We affirm in part and reverse in part. We affirm the court’s denial of Coleman’s motion to suppress and the court’s denial of his motions for an order requiring the prosecution to run Officer Stonebreaker’s rap sheet. We reverse the order imposing the Health and Safety Code section 11372.7 drug program fee and the section 987.8 attorney fees. On remand, the trial court must determine Coleman’s ability to pay both the drug program fee and attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged Coleman with possession of cocaine base for sale (Health & Saf. Code, § 11351.5). Before the preliminary hearing, Coleman filed a hybrid Brady/Pitchess 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 Police Department to produce “Officer Stonebreaker’s relevant criminal history, including any arrests or convictions involving crimes of moral turpitude... whether that information is contained in personnel files or not.” In addition, Coleman requested the Police Department to "run a ‘rap sheet’ on Officer Stonebreaker.
Regarding Brady, Coleman contended he was entitled to Officer Stonebreaker’s criminal history, if any, because the information would impeach Officer Stonebreaker, a testifying prosecution witness. Coleman claimed he needed the information “to competently defend [himself] in the underlying criminal prosecution and to cross-examine prosecution witnesses at trial.” Regarding Pitchess, Coleman argued there was good cause for disclosure of Officer Stonebreaker’s criminal history because Officer Stonebreaker made material misstatements in his police report. According to Coleman, Officer Stonebreaker’s truthfulness was “material to the issue in this case because his past misconduct would rebut any reasonable suspicion that Mr. Coleman was ever in possession of the narcotics.”
Defense counsel’s supporting declaration averred Coleman 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 Police Department, and/or the Contra Costa County District Attorney’s Office possessed the materials and there was good cause to produce them because Officer Stonebreaker had a “tendency to
fabricate incident reports and initiate detentions without reasonable suspicion.” In addition, defense counsel stated information about Officer Stonebreaker’s criminal history was relevant to impeach him at a motion to suppress hearing, preliminary examination, or trial. Finally, defense counsel’s declaration attached Officer Stonebreaker’s police report, where he stated he saw Coleman toss a bag of narcotics behind him, and Officer Danielle Evans’s police report, where she stated: “While standing next to Coleman I did not observe him discard the suspected narcotics.”
The City and Police Department opposed the motion, arguing Coleman had not demonstrated the confidential information was material to the issues at the preliminary hearing, in part because defense counsel’s supporting declaration did not allege “facts from which it is reasonable to conclude [ ] Officer [Stonebreaker] may have a criminal history or, if he does, that anything contained in that history may be relevant to the pending litigation.” The City also stated it did not possess “summary criminal history” for Officer Stonebreaker and was not required to search for such information. As the City explained, “In compliance with California Department of Justice directives regarding access to the Automated Criminal History System, the City does not search for criminal history except on a ‘need to know’ basis and in accordance ...