Filed 7/19/13 P. v. Stopani CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064742
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 11CM7556)
                   v.

JORGE STOPANI,                                                                           OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Thomas
DeSantos and James LaPorte, Judges.†
         William W. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.




*        Before Cornell, Acting P.J., Gomes, J. and Poochigian, J.
†      Judge DeSantos presided over the Marsden and Pitchess motions; Judge LaPorte
presided over the motion for continuance and trial.
       Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia
A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
                                          -ooOoo-
       This appeal raises two questions: Did the trial court fail to make an adequate
inquiry concerning a complaint about the performance of appointed defense counsel by
defendant and appellant Jorge Stopani? We conclude the court fully discharged its duty
under People v. Marsden (1970) 2 Cal.3d 118. Second, did the court abuse its discretion
in denying a defense motion for continuance, made on the first day of trial, to permit
counsel to file a discovery motion under Pitchess v. Superior Court (1974) 11 Cal.3d
531? We conclude the court did not abuse its discretion. Accordingly, we affirm the
judgment.
                       FACTS AND PROCEDURAL HISTORY
       Defendant was an inmate at the Substance Abuse Treatment Facility at the state
prison in Corcoran. Defendant was housed in a unit that consisted of a day room, a toilet
room, and three dormitory rooms, all of which were overseen from an office separated
from the unit by a wall with large windows. Defendant was confined to a wheelchair.
       On June 28, 2011, Corrections Officer Tim Price announced from the office, over
the loudspeakers, that there would be a search of the unit; he instructed all the inmates to
return to their assigned dormitories. As inmates were complying, Price and his partner,
Jesse Lopez, Jr., also in the office, saw defendant wheel himself from his dormitory to the
toilet. There, defendant stopped at a covered trash can, and the officers saw him pull an
unidentified object from between his legs and deposit it into the trash can. Lopez told
Price to continue to watch defendant, and Lopez went to the trash can. He found that the
trash can was empty except for a homemade knife lying at the bottom.
       Defendant was charged with violation of Penal Code section 4502, subdivision (a),
possession of a weapon by a prisoner. The information also alleged one prior strike and

                                             2.
two prior prison term enhancements. (Pen. Code, §§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(i), 667.5, subd. (b).)
       At defendant‟s readiness hearing, the court was discussing with defendant the
prosecution‟s offer for resolution of the case. Defendant stated that he understood the
offer but “I just wanted to ask you about the Pitchess Motion.” Defense counsel
interjected: “He‟s also requesting a Pitchess Motion, but I also believe I don‟t have
enough information to file a Pitchess Motion.” After some further discussion, the court
determined that defendant was alleging ineffective assistance of counsel, and the court
convened a closed hearing pursuant to People v. Marsden, supra, 2 Cal.3d 118.
       The sealed transcript of the Marsden hearing reveals that the court invited
defendant to state his complaint concerning counsel. Defendant said he had done some
research concerning Pitchess motions and he believed counsel should file such a motion
because “this officer” (apparently, Lopez) had “up to like 3000” inmate complaints
against him. The court questioned defendant about the basis for this claim, and twice
offered to place defendant under oath to establish a basis for the Pitchess motion.
Defendant declined. When asked to respond to defendant‟s contentions, defense counsel
stated: “I‟ve had some conversations with [defendant] at different times. I‟ve never been
given any specific names. I said I need witnesses‟ names or CDC numbers. I‟ve not
been provided any. [Defendant] indicated to me that there was [sic] individuals, but
they‟re not willing to participate.” Counsel later added: “I tried to explain to [defendant]
the Pitchess Motion. I‟ve done some. I‟ve been granted some. I‟ve been denied some. I
need to show good cause. It can‟t be a fishing expedition …. I would love to do it, but I
don‟t have the information that would be good cause for the Court to grant a Pitchess
Motion.” The court denied the Marsden request, concluding that there was no current
showing that a Pitchess motion would be justified.
       On the first day of trial, defense counsel advised the court that defendant had
learned of an inmate who would testify in the case, and that the inmate had provided

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documentation of numerous complaints by the inmate against Lopez. During the course
of a lengthy hearing on the motion, the court examined the new documentation and noted
that the complaints against Lopez all involved disputes over lighting conditions in the
unit, not claims of falsification of evidence by Lopez. Defense counsel denied that the
defense would be based on a claim that Lopez had planted the knife; instead, “[w]e‟re
saying my client was not the one who placed” the knife in the trash can. The court
denied the motion for continuance on the basis defendant had not exercised due diligence
in obtaining and presenting to counsel the information that was the basis for the request
for continuance.
       The trial proceeded with Lopez, Price, and defendant‟s fellow prisoner, Michael
Flanery, as the only witnesses. During her closing argument to the jury, the prosecutor
stated, “Ladies and gentlemen, again, [defense counsel] basically just told you that
Mr. Lopez and Mr. Price planted evidence and lied to all of you.” Defense counsel
objected: “Your Honor, that‟s misstating what I‟m saying. And, I‟m objecting as to
planting.” In fact, defense counsel had argued that the officers did see defendant going to
the trash can as they described, and saw him drop an unidentified object into the can;
when Lopez discovered the knife in the trash can, the officers “want[ed] to tie it to
somebody so they‟re going to tie it to the last person who was in that area.” Counsel
concluded that Lopez‟s testimony that there was nothing else in the trash can that
defendant could have been depositing when the officers saw him, was “simply fudging
the truth for -- for him to make a stronger case for you to convict my client.”
       The jury returned a guilty verdict. Defendant admitted the enhancement
allegations. Subsequently, the court sentenced defendant to the upper term of four years,
doubled pursuant to the “Three Strikes” law, and imposed two one-year prior prison term
enhancements, for an operative sentence of 10 years, consecutive to defendant‟s current
sentence.



                                             4.
                                       DISCUSSION
       Defendant contends the trial court abused its discretion in failing to make a careful
and sufficient inquiry into defendant‟s claim of ineffectiveness of trial counsel. (See
People v. Reed (2010) 183 Cal.App.4th 1137, 1143-1144.) Here, the court gave
defendant an ample opportunity to explain why he believed a Pitchess motion was
appropriate. The court, after questioning defendant and hearing from defense counsel,
determined defendant did not have information available to him that would support a
Pitchess motion. The right to constitutionally effective counsel does not include the right
to have counsel make meritless motions. (See People v. Mattson (1990) 50 Cal.3d 826,
876; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.) Because the court
adequately investigated defendant‟s allegation of ineffective assistance, the issue is
whether the court erred in concluding that there was no basis for a Pitchess motion. We
turn to that question.
       As explained in Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019, the
procedure that has come to be known as a Pitchess motion arose from a 1974 holding of
the Supreme Court in Pitchess v. Superior Court, supra, 11 Cal.3d at pages 536-537, that
“a criminal defendant could „compel discovery‟ of certain relevant information in the
personnel files of police officers by making „general allegations which establish some
cause for discovery‟ of that information and by showing how it would support a defense
to the charge against him.” The Legislature subsequently “codified the holding of
Pitchess ….” (Warrick v. Superior Court, supra, at p. 1019.) The Pitchess procedure
requires the trial court to review pertinent personnel files to determine whether there is
relevant information that should be disclosed to the defendant. However, the defendant
must establish good cause for such review. In order to do so, the defendant is required to
establish “a plausible scenario of officer misconduct” (id. at p. 1026), that is, “an
assertion of specific police misconduct that is both internally consistent and supports the
defense proposed to the charges” (ibid.).

                                              5.
       It is clear from the record that defense counsel held himself to a standard for the
filing of such a motion that is higher than the Supreme Court requires. In other words,
counsel asserted to the trial court at the Marsden hearing that he could not file a Pitchess
motion because he did not have documented allegations filed by other inmates against
Lopez. Warrick only requires allegations by the defendant.
       Nevertheless, the defendant‟s allegations must be specific and consistent with his
asserted defense and, in the present case, defendant has failed on both counts. Before the
court at the time of the Marsden hearing was a motion for appointment of a defense
expert. In counsel‟s declaration in support of that motion, counsel stated that the defense
was that, just as Lopez had observed, defendant was in the vicinity of the trash can at the
time in question, but he did not put the knife in the can. When given the opportunity at
the Marsden hearing to allege under oath that Lopez had placed the knife in the trash can,
defendant declined to do so. Even at trial, defense counsel specifically disclaimed any
theory that Lopez had planted evidence. Instead, the theory was that Lopez and Price
had, indeed, seen defendant roll into the toilet area next to the trash can, had seen
defendant drop something into the trash can, truthfully testified that they could not tell
what it was defendant had dropped into the can, and that Lopez had “fudged” his in-court
testimony in asserting that there was nothing else in the can that defendant could have
deposited instead of the knife. Accordingly, the defense theory was that the officers had
seen what they testified they saw, but had drawn erroneous conclusions from what they
actually saw. This does not constitute an assertion of police misconduct, and does not
propose a defense that is supported by an allegation of prior falsification of evidence by
Lopez. Neither at the time of the Marsden hearing nor at the time of trial did defendant
establish good cause for an examination of Lopez‟s personnel records pursuant to
Pitchess.
       This brings us to defendant‟s final contention, that the court abused its discretion
in failing to grant a continuance of the trial to permit the filing of a Pitchess motion.

                                              6.
Because, as we have concluded, defendant did not establish that such a motion would
likely have been meritorious, the court did not err in refusing to grant the continuance;
nor was defendant prejudiced by the failure to grant a continuance, since he did not have
grounds for a successful Pitchess motion.
                                     DISPOSITION
       The judgment is affirmed.




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