Filed 10/19/15 P. v. Leon CA2/6

             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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         IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               SECOND APPELLATE DISTRICT

                                             DIVISION SIX


THE PEOPLE,                                                               2d Crim. No. B253707
                                                                        (Super. Ct. No. BA408102)
     Plaintiff and Respondent,                                            (Los Angeles County)

v.

ARMANDO LEON,

     Defendant and Appellant.



                   Appellant was charged with arson of a structure. (Pen. Code,
§ 451, subd. (b).)1 He moved for discovery of any misconduct complaints
against the 11 arresting officers pursuant to Pitchess v. Superior Court (1974)
11 Cal.3d 531 (Pitchess). The trial court denied the Pitchess motion and a
subsequent Marsden2 motion but granted appellant's request to represent himself.
Subsequently, the People amended the information to add a charge of resisting an
executive officer in the performance of his duties. (§ 69.)
                   A jury convicted appellant on both counts. The trial court
sentenced him on the arson count to five years in prison. For resisting an


         1
             All further statutory references are to the Penal Code.
         2
             (People v. Marsden (1970) 2 Cal.3d 118.)
executive officer, the court imposed a concurrent 16-month sentence, which it
stayed. (§ 654.) It awarded him 376 days of presentence custody credit.
              Appellant contends that the trial court erred by (1) denying his
Pitchess motion; (2) pronouncing sentence without considering the probation
report; and (3) not ordering a post-conviction probation report. We affirm.
                                      FACTS
              One evening, appellant went to his father's house. He did not live
there but would go to bathe and use the bathroom. He had been behaving
erratically—excited and agitated—all week. His father was concerned that he
was under the influence of PCP.
              Appellant became very angry about a broken car key. He
confronted his father in the kitchen, picked up a pan with food in it, and threw it
on the floor. Javier, appellant's brother, held him back while his father went to
the living room and picked up the phone. Appellant broke free, took the phone
from his father, and threw it on the ground. His father attempted to exit the
house and walk away while Javier held him back, but appellant broke free and
dragged his father back inside against his will. With the assistance of two friends
who were outside, Javier kept him at bay while his father walked off.
              Several police officers responded to a 911 call about a "415
man"—an aggressive and combative person, possibly under the influence of
PCP.3 They found appellant behind one of the cars in his father's driveway.
When the officers started to approach him, he ran through a doorway leading
from the driveway to an unfinished basement. The basement was not connected
to the rest of the house, and the doorway was the only way in or out.




       3
        Section 415 punishes unlawful fighting in public, disturbing others with
loud and unreasonable noise, and publicly using offensive words likely to
provoke an immediate violent reaction.
                                         2
              The officers identified themselves to appellant and several times
advised him to surrender by coming out with his hands up. Appellant responded
with expletives in a loud and aggressive tone of voice.
              Appellant's behavior escalated dramatically. At first, he tried to
barricade himself in the basement by placing rocks in the doorway to prevent the
police from entering or seeing inside. As the police used various tactics to
demolish the barricade, appellant began throwing rocks, gravel, dirt, glass
bottles, and other debris through the entryway and swung a shovel and garden
hoe at officers to keep them at a distance. One time he showed the police a large
knife. Another time he pointed a small crossbow at them.
              Eventually, appellant started to use a propane tank as a flame
thrower. He shot six-foot jets of flame at the officers from inside the basement
and ignited various objects, such as wadded up paper towels or pieces of paper,
and threw them in the officers' direction. The flames set the basement on fire,
causing a great deal of smoke to come out and activating the fire alarm inside the
house.
              The police unsuccessfully attempted to negotiate with appellant. In
addition, they used a taser and beanbag shotgun on him, which had no effect.
They called a SWAT team and the fire department. From a safe distance, the
firefighters were able to extinguish the flames.
              When the SWAT team arrived, they threw two tear gas canisters
into the basement. Appellant remained there. The SWAT team then deployed a
K-9 on a long leash. Appellant hit the dog in the face with the shovel three or
four times, causing it to yelp, and the dog was pulled out. Appellant continued
throwing various things at the officers, striking two with rocks. After a few
hours, the SWAT team cut a second opening into the basement through which
they tased him. He stopped momentarily, tried to pull the darts out, and
continued resisting. When he moved towards the doorway, officers pulled him
through and were then able to handcuff him and take him into custody.

                                         3
                                   DISCUSSION
                                  Pitchess Motion
              Appellant contends that the trial court erred by denying his
Pitchess motion. We review for abuse of discretion. (Alford v. Superior Court
(2003) 29 Cal.4th 1033, 1039.) As we shall explain, in order to grant the in
camera review, the trial court would have had to engage in "the willing
suspension of disbelief." By any measure, appellant's purported alternative
scenario asks this court to apply not the "relaxed standards" required for a
showing of good cause, but collapsed standards or no standards at all. We
decline the invitation. Appellant's contention that 11 police officers engaged in
the premeditated and ad hoc calumny attributed to them defies reason and logic.
His claim also ignores the 911 call that summoned them, the confrontation and
fire that ensued, and the response of firefighters to the scene. His is not a
plausible scenario.
              "'[O]n a showing of good cause, a criminal defendant is entitled to
discovery of relevant documents or information in the confidential personnel
records of a peace officer accused of misconduct against the defendant.
[Citation.] Good cause for discovery exists when the defendant shows both
"'materiality' to the subject matter of the pending litigation and a 'reasonable
belief' that the agency has the type of information sought." [Citation.] A
showing of good cause is measured by "relatively relaxed standards" that serve to
"insure the production" for trial court review of "all potentially relevant
documents." [Citation.]' [Citation.]
              "The defendant does not need to corroborate or show motivation
for the alleged officer misconduct, but must provide '"a plausible scenario . . .
that might or could have occurred." [Citation.] A scenario is plausible when it
asserts specific misconduct that is both internally consistent and supports the
proposed defense. [Citation.]' [Citation.]


                                          4
              "'[D]efendant need demonstrate only "a logical link between the
defense proposed and the pending charge" and describe with some specificity
"how the discovery being sought would support such a defense or how it would
impeach the officer's version of events." [Citation.]' [Citation.] The inquiry
does not involve 'an assessment or weighing of the persuasive value of the
evidence . . . presented [or] which should have been presented. [Citations.]
Indeed, a defendant is entitled to discover relevant information under Pitchess
even in the absence of any judicial determination that the potential defense is
credible or persuasive.' [Citation.] 'If the defendant establishes good cause, the
court must review the requested records in camera to determine what
information, if any, should be disclosed. [Citation.]' [Citation.]" (People v.
Sanderson (2010) 181 Cal.App.4th 1334, 1339-1340.)
              Here, appellant sought in camera review and discovery of a
smorgasbord of "[a]ll complaints . . . relating to acts of aggressive behavior,
violence, excessive force, or attempted violence or excessive [sic], racial bias,
gender bias, ethnic bias, sexual orientation bias, coercive conduct, violation of
constitutional rights, fabrication of charges, fabrication of evidence, fabrication
of reasonable suspicion and/or probable cause, illegal search/seizure; false arrest,
perjury, dishonesty, writing of false police reports . . . , planting of evidence,
false or misleading internal reports including but not limited to false overtime or
medical reports, and any other evidence of misconduct amounting to moral
turpitude" against the 11 arresting officers. Appellant explained the materiality
of the requested discovery as follows:
              "Hollenbeck Police Officers responded to [appellant's father's
house] regarding an alleged family disturbance. When the officers arrived,
[appellant] was in the front yard doing nothing significant. Suddenly, the
officers began firing rubber bullets at [him] for no reason. To protect himself,
[appellant] dove into the nearest cover space to shield his body. The area where
he dove into was the crawlspace underneath his father's home. Once in the crawl

                                           5
space, [he] threw dirt to block himself from the officers' view. [He] never threw
rocks, bottles or other items at the officers, as they claim.
              "While under the home to avoid the unwarranted attacks by the
officers, [appellant] never lit any fire and never even had any propane gas, as
claimed by all of the involved officers. In fact, [four of the officers] continually
deployed tasers at [his] stomach and legs; and [three other officers] continually
fired bean bags at [his] abdomen. Furthermore, [another officer] had an HK 416
Patrol Rifle and a bean bag shotgun, which he fired at [appellant] several times,
while [two other officers] fired gas projectiles (tear gas) into the crawl space and
deployed a K-9 to attack [him]. Finally, [the remaining officer] assisted in
[appellant's] arrest . . . , in which [he] was hit, kicked and beaten by the arrest
team.
              "These officers individually and collectively used excessive force
on [appellant] and filed false police reports to cover-up their abuse. The force
that they used on [him] was unnecessary in light of the non-violent behavior that
he exhibited."
              Appellant's scenario is not plausible. "[He] does not provide an
alternate version of the facts regarding his presence and his actions prior to and at
the time of his arrest. He does not explain the facts set forth in the police report.
In essence, his declaration claims that the entire incident was fabricated and, by
inference, that the police officers conspired to do so in advance." (People v.
Thompson (2006) 141 Cal.App.4th 1312, 1318 (Thompson).)
              Appellant likens this case to Warrick v. Superior Court (2005) 35
Cal.4th 1011, but in that case "the defendant did not merely make bald assertions
that denied the elements of the charged crime. He provided an alternate version
of the events that was plausible, if not entirely convincing. The defendant
presented a 'specific factual scenario' that explained his presence in the area, his
running from the police, and a reason for the police to conclude that he had
discarded the rock cocaine they recovered. And, the scenario supplied, at least

                                           6
by inference, an explanation for the cocaine being on the ground, namely that
others had discarded it to avoid arrest." (Thompson, supra, 141 Cal.App.4th at p.
1318.)
               Here, in contrast, appellant's story is neither internally consistent
nor supportive of any defense. He does not explain why jets of fire were
shooting out of the basement if he was not responsible or, if there was no fire,
why there was fire damage to the basement after the incident, why the fire alarm
in the house above was activated, why the fire department needed to be
dispatched, and why the firefighters—whom appellant does not claim were
conspiring against him—reported seeing smoke, flames, and blazing objects
coming out of the basement. His allegations of excessive force were irrelevant to
the arson charge, the only one pending at the time of his Pitchess motion,
because he did not assert that the police used deadly force against him. He was
not justified in responding with deadly force if, notwithstanding his denials, the
jury believed he propelled fire at the officers. The trial court did not abuse its
discretion.
                       Consideration of the Probation Report
               Before judgment is pronounced, "the court shall consider any
report of the probation officer . . . and shall make a statement that it has
considered the report." (§ 1203, subd. (b)(3).) Appellant contends that the trial
court violated this provision and federal due process by failing to state on the
record that it had considered the probation report. He asks us to vacate his
sentence and remand for resentencing.
               Because "there is nothing in the record indicating any reluctance on
[appellant's] part to proceed without the report, and no indication that [he]
believed there were additional facts to be presented to the court that might have
influenced the court's decision," his failure to object in the trial court forfeits the
issue here. (People v. Oseguera (1993) 20 Cal.App.4th 290, 294.) "Simple


                                           7
errors of state law do not implicate federal due process guarantees. [Citation.]"
(People v. Henning (2009) 178 Cal.App.4th 388, 398.)
              Moreover, the trial court's error in failing to state that it had
considered the probation report was harmless. The trial court's minute order
states that it "read and considered the defendant's probation report." Both
appellant and the prosecutor discussed the most relevant information from the
report at the sentencing hearing. The prosecutor noted that appellant had a
lengthy criminal history in arguing that probation was inappropriate. Appellant
"partially object[ed]" that the report failed to reflect certain circumstances in
mitigation and stressed its recommendation that he receive a suspended sentence
and probation. Unlike the total absence of a current probation report, the trial
court's failure to state on the record that that it has read and considered the report
does not necessarily indicate a failure to do so. (People v. Gorley (1988) 203
Cal.App.3d 498, 506.) The statutory purpose "is sufficiently served and remand
is not required if the record otherwise clearly shows that the court has read the
[probation report] or has considered the information provided in it." (Id., at pp.
506-507.)
          Claimed Failure to Order a Post-Conviction Probation Report
              Appellant also contends that this matter should be remanded
because the probation report was prepared before he was convicted and the trial
court failed to order an updated report afterwards. This contention is similarly
forfeited. (People v. Johnson (1999) 70 Cal.App.4th 1429, 1431.) His partial
objection to aspects of the pre-conviction report did not put the trial court on
notice that he wanted a post-conviction report prepared.
              Regardless, there was no error. A new probation report is
necessary only "for sentencing proceedings that occur a significant period of time
after the original report was prepared" or if there is an "indication of changed




                                          8
circumstances."4 (Cal. Rules of Court, rule 4.411(c) & Advisory Com. com. foll.
rule 4.411.) That was not the case here. The pre-conviction report was prepared
about 10 months before sentencing, and appellant was "under the watchful eyes
of custodial authorities" the entire time. (People v. Dobbins (2005) 127
Cal.App.4th 176, 181.)
              Appellant fails to identify any relevant new information that should
have been included in a post-conviction probation report. He admits that the
"unusual circumstances" making him eligible for probation were "[found] in the
pre-conviction report." He filed a pre-sentencing memorandum in which he
provided details of his personal background, including his work history and
prospects, admitted he "made a big mistake" by resisting arrest, apologized for
his "role," but maintained his innocence. He submitted several letters from
various individuals supporting him. The trial court expressly considered all of
this in addition to his and his father's pleas at the hearing for leniency and a
chance for him to enter a drug treatment program.
              Even if there were error, it was harmless. This was not a case in
which the trial court appeared unaware of the scope of its sentencing discretion.
(E.g., People v. Rodriguez (1998) 17 Cal.4th 253, 257 ["[W]here the record
affirmatively discloses that the trial court misunderstood the scope of its
discretion, remand to the trial court is required"].) Not only did appellant remind

       4
         Appellant attempts to distinguish between an "updated" or
"supplemental" report—which he disclaims seeking—and the "post-conviction"
report to which he asserts entitlement. There is no such distinction. The statute
provides that "if a person is convicted of a felony and is eligible for probation," a
probation report must be prepared "before judgment is pronounced." (§ 1203,
subd. (b)(1), italics added.) It does not purport to limit when (other than before
judgment) the report can be prepared. Appellant argues that "[a] different
section, 1203.7, dictates the preparation of a pre-conviction report." But that
section merely requires that the probation officer prepare the report "when so
directed by the court," which can be "[e]ither at the time of the arrest . . . or at the
time of the plea or verdict of guilty" (§ 1203.7, subd. (a)), i.e., either pre-
conviction or post-conviction.
                                           9
the court that the probation report recommended probation, but prior to trial the
court itself offered to sentence him to probation if he entered an open plea of
guilty. Thereafter the court heard a full exposition of the facts and circumstances
of the case in the trial that unfolded. The information available to the court that
it knew and considered was far greater than that which was contained in the
probation report.5 The trial court fully understood its discretion and made an
informed decision to impose a prison term rather than probation. Nothing more
was required.
                                   DISPOSITION
                The judgment is affirmed.
                NOT TO BE PUBLISHED.




                                            PERREN, J.


We concur:


                GILBERT, P. J.



                YEGAN, J.




       5
        The court has read the probation officer's report prepared March 25,
2013. There is virtually nothing contained in that report which was not
recounted in far greater detail at trial or otherwise provided to the trial court at
the time judgment was pronounced.
                                          10
                                Drew E. Edwards, Judge

                         Superior Court County of Los Angeles
                         ______________________________


             Robert Booher, under appointment by the Court of Appeal, for Defendant
and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, and William N. Frank, Deputy
Attorney General, for Plaintiff and Respondent.
