THE PEOPLE v. HARVEY CRUSE (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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Appellant Harvey Cruse was convicted by a jury of a single count alleging the sale of cocaine and he admitted three prior felony convictions.   He was sentenced to the midterm of four years in prison and the court imposed, but stayed, one-year sentences for each of the three prior convictions.   The court imposed various fines and assessments and awarded custody credits totaling 835 days.   We affirm the conviction.

FACTS

In December 2007, the Narcotics Abatement Unit of the Los Angeles Police Department was conducting an operation dubbed “Operation Oakwood” in Venice, which was aimed at identifying street sellers of cocaine;  Operation Oakwood lasted for approximately six months until January/February 2008.   The basic approach of Operation Oakwood was to identify as many sellers as possible but not to arrest them until all identified sellers would be arrested at once in February 2008.   The identification of the seller would be cinched by a “soft stop” after the sale had taken place.   The “soft stop” consisted of officers speaking with the seller and identifying, but not arresting, him.   Narcotics buys were to be effected by undercover officers and civilians called “nonconfidential informants.”

Detective Gilbert, along with Detective Delatorre, were in charge of Operation Oakwood, had used Randy Morris as a nonconfidential informant and did so again on December 5, 2007, the day that appellant effected the sale that led to his conviction.   Morris had a criminal history of minor crimes to which he added after appellant's conviction an arrest for car burglary.   This arrest is the subject of one of the contentions on appeal.

On the given day, Morris was dispatched by Operation Oakwood to a specific location in Venice where he arrived on his bicycle around 8:00 p.m. Gilbert and another detective, Robert Beckers, followed Morris in an unmarked vehicle.   Morris made contact with an individual whom he asked where he could buy some drugs.   This individual told him that a potential seller was not in the neighborhood, and the two of them then started walking down Broadway.

They soon encountered appellant.   Morris asked appellant, “You got something for a forty?” to which appellant said yes.   Morris gave appellant $40 in cash and appellant gave Morris rock cocaine, after which Morris rode off on his bicycle.

Morris handed the cocaine over the Gilbert and Beckers, who then drove past the location where Morris had his encounter with appellant.   Morris, who was along for the ride, identified appellant.   The final event was the “soft stop” conducted successfully by Officers Hadley and Barone shortly thereafter.

Appellant was arrested in February 2008, along with about 54 others.

At trial, the defense concentrated on the circumstance that neither Gilbert nor Beckers actually saw the physical exchange of drugs for money between appellant and Morris.  (The closest anyone got to the exchange was Delatorre who drove by the scene and saw appellant speaking with Morris.)   The lack of this evidence troubled the jury, which deadlocked on the second day of deliberations, and it sparked a question by the jury that is the subject of one of the contentions on appeal;  we take up this question when we address that contention.

DISCUSSION

1. The Trial Court Did Not Err In Limiting the Pitchess Hearing to Three Officers

Appellant directed his Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess ) motion at all eight officers who comprised Operation Oakwood on December 5, 2007.   The trial court granted the motion as to Beckers, Barone and Hadley “as to moral turpitude only” and denied the motion as to the remaining five.   The court's rationale was that only Beckers, Barone and Hadley had any contact with Morris.   The defense's theory was (and is) that appellant was not actually identified or detained on December 5, 2007, and that police reports showing that he had sold cocaine to Morris on that day were falsifications.   Both in the trial court and in this appeal appellant claims that because Morris's signature varies from report to report, someone other than Morris wrote the statements that Morris allegedly signed, which means, at least according to appellant, that the police were fabricating the statements.

In order to obtain discovery of a police officer's personnel file under Pitchess, there must be a “plausible factual foundation” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 86) for the alleged officer misconduct.  (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1025.)   There is no factual foundation at all for the claim that any of the police officers, much less all eight of them, were fabricating Morris's statements.   There are any number of reasons why Morris's signature varies, assuming that it does, from statement to statement.   The claim that the officers were fabricating statements is just that, a claim, and it is not a fact.   As an example, if Morris denied making a particular statement that has his signature on it, one would have a fact from which it could be inferred that someone else made up the statement.   But there is nothing of the sort in this record.

Appellant insists that Gilbert was very important in Operation Oakwood and therefore appellant was entitled to discover whether there were complaints about Gilbert “concerning dishonesty or the filing of false reports.”   Appellant's mistake is that nowhere does it appear that Gilbert was chargeable with misconduct.   Appellant's argument boils down to the claim that because Gilbert was a police officer, it is possible that he was filing false reports.   The trial court was not inclined to draw such inferences and neither are we.   In fact, the trial court did not include Gilbert in the Pitchess hearing because Gilbert did not write any of the reports, he did not testify and he didn't see the actual exchange between appellant and Morris.   Becker was included because he did write the police report.   We think the distinction makes the difference and reflects a “reasonable and realistic assessment of the facts and allegations,” which is what is required.  (People v. Thompson (2006) 141 Cal.App.4th 1312, 1319.)

If anything, the trial court's ruling leaned in appellant's favor since writing a police report, as Beckers did, or detaining appellant, as Barone and Hadley did, is not suggestive of any form of misconduct on the officers' part.

Contrary to appellant's claim, this case is not like Warrick v. Superior Court.   In that case, it was conceded that the defendant fled at the sight of three approaching police officers in a high crime area;  at issue was whether the defendant discarded drugs as he fled, as the People contended, or whether the police falsely stated that he had done so, as the defense claimed was possible.  (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1022-1023.)   There was more in Warrick than a global claim that the police were testifying falsely.   The claim was that the police either knew that the drugs belonged to someone else or did not know who had discarded them but in any event falsely stated that the defendant had thrown them away.   In the appeal before us, there is an unfocused general claim that some or all of the eight officers had at an unknown time and in an unknown manner falsified unidentified police reports.   There is quite a difference between this case and Warrick.   In this case, appellant is unable to even identify a single officer who can be tied to some misconduct, even in a most attenuated manner.

We conclude that the trial court's ruling was correct and we therefore reject appellant's Pitchess contention.

2. Appellant Has Forfeited the Matter of the Court's Answer to the Jury's Question

On the second day of deliberations, the jury inquired whether there was “any other evidence of an additional person seeing the transaction between Randy Morris and the person who allegedly sold him drugs.”

After quite a thorough and exhaustive interchange between the trial court and both counsel, the court responded as follows:  “Police officers who testified stated that they saw interaction between Randy Morris and the defendant.   There was no additional testimony at the trial that anyone else saw other than Randy Morris in [sic ] exchange of narcotics for money.”

Both the prosecutor and defense counsel stated on the record that they approved of this answer.

When, as here, the trial court carefully explores a jury's question with counsel and then works out an answer with their full approval, this court will not entertain the argument that the answer was wrong.   Even silence on the part of defense counsel in the face of an answer by the trial court to a jury's question is deemed to be a waiver or forfeiture.  (People v. Roldan (2005) 35 Cal.4th 646, 729.)   Positive assent certainly forfeits the issue.

We do not agree that the court's alleged misstatement of the evidence rises to the dignity of a constitutional claim.   The alleged errors are quibbles at best, not claims based on the due process clause.   One such quibble is that there was only one officer, Delatorre, who testified that he saw Morris and appellant speaking to each other and therefore the court's first sentence should have said “officer” and not “officers.”   In any event, as respondent points out, the quibble has it wrong and the court had it right because there were other officers who testified they saw appellant on the scene.   Nor do we find the word “interaction” to be objectionable;  on the contrary, it is helpful to the defense as it underlines the fact that only Morris testified about the exchange of drugs and money.

This claim has been forfeited.

3.  Brady v. Maryland Does Not Apply

During the trial, Morris recited his criminal history and then was asked why he decided to leave behind his life of crime.   His answer was that he was tired of breaking the law and seeing innocent people get hurt and that he “wanted to help clean up my neighborhood.”

The jury returned its verdict on August 21, 2008.   On September 21, 2008, before appellant's motion for new trial was filed, Morris was arrested and arraigned for car burglary.¹  On October 2, 2008, appellant filed a motion for additional discovery under Brady v. Maryland (1963) 373 U.S. 83 (Brady ).   The motion addressed the matter of Morris's arrest for car burglary.

The trial court ordered the prosecution to turn over to the defense the police report of Morris's September 21, 2008 arrest.   The court then held three in camera sessions with Detectives Beckers, Gilbert and Miller to determine whether they had any information about Morris that was previously undisclosed.   Ultimately, the court concluded that there was no further discoverable Brady material.

In his opening brief, appellant requests that this court review the sealed transcripts of the in camera hearings to determine if the trial court was correct in ruling that there was no discoverable evidence that was previously undisclosed.

To begin with, there is no Brady issue in this case because the court ordered disclosure to the defense of Morris's arrest report about the September 21, 2008 alleged car burglary.   No other evidence or materials about this incident have been identified.

The trial court did more than it was required to do about the September 21, 2008 arrest.   Because Morris's credibility was central to the case (no one other than Morris actually saw the exchange of cocaine and money) the trial court went out of its way to ensure that Morris's arrest in September 2008 did not bear on his credibility.   We have followed the trial court's lead and have reviewed the record of the in camera hearings and are satisfied that there simply is no further evidence about the September 21, 2008 arrest nor is there any previously undisclosed evidence that bears on Morris's credibility.

4. The September 2008 Arrest Is Irrelevant

Appellant contends that the September 21, 2008 arrest shows that “the prosecution's presentation of Morris as a reformed person who wanted to help his community was disingenuous and false.”

We do not agree.   Morris's arrest in September 2008 is simply inadmissible on the issue of Morris's state of mind on August 15, 2008, when he testified that he decided to leave his life of crime and also made the decision to try to help clean up his neighborhood.   For one, it is an arrest and not a conviction.   Second, an event that took place over a month after he testified cannot logically relate to, or explain, his state of mind on August 15, 2008.

DISPOSITION

The judgment is affirmed.

We concur:

FOOTNOTES

FN1. Morris appears to have been released on his own recognizance..  FN1. Morris appears to have been released on his own recognizance.

RUBIN, Acting P.J. GRIMES, J.