Filed 6/3/15 P. v. Cox 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
                                                                                           F067171
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 10CM8927)
                   v.

LAVERT COX,                                                                              OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kings County. Donna L.
Tarter, Judge.

         Tracy Lum, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Catherine Chatman and Jeffrey Grant, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         While serving a sentence of 15 years to life following a 1988 conviction,
defendant Lavert Cox was alleged to have offered a bribe to an executive officer—a
correctional officer at Avenal State Prison. Defendant was convicted following a jury
trial. He now appeals his conviction.
       Defendant contends the trial court’s refusal or failure to instruct the jury on the
defense of entrapment violated his rights under the Sixth and Fourteenth Amendments to
the United States Constitution to adequate instructions on the theory of the defense, as
well as his rights to a jury trial and due process of law. He further argues the trial court
erred by denying his motion made under Pitchess v. Superior Court (1974) 11 Cal.3d 531
(Pitchess). We will affirm.
                              RELEVANT BACKGROUND
       Correctional Officer Michael Ferree was approached by defendant in early 2010.
Defendant asked Ferree to remove certain documents from his central file in exchange for
cash. Ferree declined defendant’s request and, believing defendant was just testing him
as inmates are wont to do, he opted not to report the incident to his superiors. In August
2010, defendant approached Ferree again about removing the documents from his central
file in advance of a parole board hearing. It then became apparent defendant was serious;
Ferree reported the incident to the Investigative Services Unit (ISU).
       Sergeant Robert Amaro with ISU provided Ferree with a recording device and
asked Ferree to see if he could get a conversation with defendant recorded. Ferree,
assigned as a search and escort officer, called defendant’s housing unit and asked that
defendant be sent to the program office. A recording of the conversation upon
defendant’s arrival was played for the jury. A second recording of a subsequent
conversation between Ferree and defendant, made the following day, was also played for
the jury. In the conversations, defendant offered Ferree $2,000 in order to remove certain
documents from his file, providing Ferree with a list of the specific documents.
Defendant also offered and provided to Ferree four $100 bills as a downpayment. The
remainder of the money was to be paid in about two weeks’ time. After the recorded
meetings, Ferree provided defendant’s list and the cash to Amaro.



                                              2.
       Defendant testified to an entirely different scenario. He indicated Ferree was the
initiating party, asking defendant if he wanted documents removed from his central file in
order to improve his chances with the parole board. Defendant declined the assistance,
but Ferree continued to approach him with the offer. Defendant found Ferree’s contacts
harassing and complained about it to his dorm mates. One of those inmates provided
$400 to defendant so he could pay Ferree to leave him alone. Defendant denied paying
Ferree a bribe. He also denied providing Ferree with a list of documents he wanted
removed from his central file. Moreover, while defendant can be heard offering Ferree a
gold chain and other jewelry as collateral or compensation for the remainder of the total
payment discussed, defendant testified he never intended to pay Ferree any more money.
It was just a way to get Ferree to leave him alone.
       Following jury trial, defendant was found guilty of bribing an executive officer.
(Pen. Code, § 67.)1 In a bifurcated proceeding, the court found defendant’s prior strike
conviction to be true. Thereafter, defendant was sentenced to an eight-year term, to be
served consecutive to the 15 years-to-life term he is currently serving. Defendant filed a
timely notice of appeal.
                                         DISCUSSION
1.     The Defense of Entrapment
       Defendant contends the trial court erred by refusing to instruct the jury with
CALCRIM No. 34082 because there was substantial evidence supporting the defense

       1“Every person who gives or offers any bribe to any executive officer in this state, with
intent to influence him in respect to any act, decision, vote, opinion, or other proceeding as such
officer, is punishable by imprisonment in the state prison for two, three or four years ….”
       2“Entrapment is a defense. The defendant has the burden of proving this defense by a
preponderance of the evidence. This is a different standard from proof beyond a reasonable
doubt. To meet this burden, the defendant must prove that it is more likely than not that (he/she)
was entrapped.
      “A person is entrapped if a law enforcement officer [or (his/her) agent] engaged in
conduct that would cause a normally law-abiding person to commit the crime.
        “Some examples of entrapment might include conduct like badgering, persuasion by
flattery or coaxing, repeated and insistent requests, or an appeal to friendship or sympathy.

                                                 3.
despite the trial court’s ruling otherwise. Plaintiff argues the trial court correctly denied
defendant’s request to instruct the jury on the defense of entrapment. Further, even if
error occurred, plaintiff asserts it was harmless. We find any error to be harmless.
        A.      The Trial Court’s Ruling
        During a discussion regarding jury instructions, the following colloquy occurred:

                “[THE COURT]: And I just want to make sure that everybody’s clear
        that the defense of entrapment does not apply in this case, agreed?

                “[PROSECUTOR]: I agree.

               “THE COURT: Okay, [defense counsel]? [¶] … [¶] … I can tell you
        that according to the testimony from [defendant] he denied making a bribe.
        He’s denied it.

                “[DEFENSE COUNSEL]: Correct.

                “THE COURT: So entrapment wouldn’t apply.



       “Another example of entrapment would be conduct that would make commission of the
crime unusually attractive to a normally law-abiding person. Such conduct might include a
guarantee that the act is not illegal or that the offense would go undetected, an offer of
extraordinary benefit, or other similar conduct.
        “If an officer [or (his/her) agent] simply gave the defendant an opportunity to commit the
crime or merely tried to gain the defendant’s confidence through reasonable and restrained steps,
that conduct is not entrapment.
        “In evaluating this defense, you should focus primarily on the conduct of the officer.
However, in deciding whether the officer’s conduct was likely to cause a normally law-abiding
person to commit this crime, also consider other relevant circumstances, including events that
happened before the crime, the defendant’s responses to the officer’s urging, the seriousness of
the crime, and how difficult it would have been for law enforcement officers to discover that the
crime had been committed.
        “When deciding whether the defendant was entrapped, consider what a normally law-
abiding person would have done in this situation. Do not consider the defendant’s particular
intentions or character, or whether the defendant had a predisposition to commit the crime.
        “[As used here, an agent is a person who does something at the request, suggestion, or
direction of an officer. It is not necessary that the agent know the officer’s true identity, or that
the agent realize that he or she is actually acting as an agent.]
        “If the defendant has proved that it is more likely than not that (he/she) __________
<insert charged crime, e.g., committed embezzlement> because (he/she) was entrapped, you must
find (him/her) not guilty of _________________ <insert charged crime>.”

                                                  4.
              “[DEFENSE COUNSEL]: Um—

              “THE COURT: He’s actually saying that the Officer Ferree just lied.

              “[DEFENSE COUNSEL]: Correct, that he was—and I don’t know, I’d
       have to quickly look at the instructions, I don’t know if it—if it’s necessity
       or duress or any type of necessity or duress—

              “THE COURT: Sure.

              “[DEFENSE COUNSEL]: —instruction would apply. I would agree
       with the Court that the—that on the state of the evidence a—a entrapment
       defense probably instruction would not—would not be given.

             “THE COURT: If you’ll approach 3406 through 3408 includes some
       defense. So go ahead and look at those.

              “(Brief pause in the proceedings.)

              “THE COURT: Back on the record. Go ahead, [defense counsel].

              “[DEFENSE COUNSEL]: Yes, your Honor, as to the charge
       conference in the jury instructions prior to my client testifying we did not
       discuss an entrapment defense. As I look at CAL CRIM 3408 the
       entrapment instruction, third paragraph states ‘Some examples of
       entrapment might include conduct by badgering, persuasion by flattery or
       coaxing, repeated and insistent requests, or an appeal to friendship or
       sympathy.’ Based on the defense evidence that was presented, I think
       badgering and repeated insistent requests would apply.

             “Additionally, I guess another example of entrapment would be
       conduct that would make commission of a crime unusually attract[ive] to a
       normally law-abiding person.

              “I think there’s probably evidence, if the defendant’s testimony is
       believed, that to put it I guess in regular terms, Ferree was trying to make
       him an offer he—he couldn’t pass up which is hey, I’ll help you out.

              “But for that—for those reasons, your Honor, I do think—I would
       request an entrapment instruction.”
The People opposed the giving of the instruction. Defense counsel argued further and the
court ruled as follows:

              “[DEFENSE COUNSEL]: Well, I mean I guess if the jury thinks that a
       bribery had occurred as Sergeant Amaro I think testified that he thought,

                                             5.
       you know, the crime occurred on September 1st or August 31st, and no
       time before that, you know, then—then—then that he was badgered or
       there was repeated or insistent requests for him to produce the money, I
       think would—that’s the evidence and would be deserving of the entrapment
       defense, and with that I submit.

             “THE COURT: All right. The Court is not going to allow the
       entrapment defense, the Court’s of the belief that there was not substantial
       evidence presented by [defendant] to substantiate that jury instruction.

               “Basically what [defendant] testified to was that, and believed, was
       that this Officer Ferree was harassing the defendant and requesting that the
       defendant pay him money so that he could delete documents from his file,
       however, [defendant] continually testified that—that he did not pay the
       money in order to bribe this officer but to leave him alone, and that’s the
       only reason why he gave him the money is to have Officer Ferree leave him
       alone.

              “So if the jury believes [defendant], he would not be guilty because
       he didn’t bribe the officer, but it wouldn’t be I’m not guilty because of
       entrapment.”3
       B.     The Applicable Law
       “‘Entrapment’ is the conception and planning of an offense by an officer and his
procurement of its commission by one who would not have perpetrated it except for the
trickery, persuasion or fraud of the officer. [Citation.]” (People v. Strohl (1976) 57
Cal.App.3d 347, 367.)

               “In California, the test for entrapment focuses on the police conduct
       and is objective. Entrapment is established if the law enforcement conduct
       is likely to induce a normally law-abiding person to commit the offense.
       [Citation.] ‘[S]uch a person would normally resist the temptation to
       commit a crime presented by the simple opportunity to act unlawfully.
       Official conduct that does no more than offer that opportunity to the
       suspect—for example, a decoy program—is therefore permissible; but it is
       impermissible for the police or their agents to pressure the suspect by
       overbearing conduct such as badgering, cajoling, importuning, or other
       affirmative acts likely to induce a normally law-abiding person to commit
       the crime.’” (People v. Watson (2000) 22 Cal.4th 220, 223.)


       3We note a defendant may assert entrapment and still deny guilt. (People v. Perez (1965)
62 Cal.2d 769, 775-776; see Bench Notes to CALCRIM No. 3408.)

                                              6.
A trial court is “required to instruct the … jury on the defense of entrapment if, but only
if, substantial evidence supported the defense.” (People v. Watson, supra, at pp. 222-
223.)
        Application of the entrapment defense depends upon whether “the intent to
commit the crime originated in the mind of defendant or in the mind of the entrapping
officer.” (People v. Benford (1959) 53 Cal.2d 1, 10.)
        On appeal, the court reviews the record to determine whether substantial evidence
supports the claimed defense to require the trial court to instruct regarding entrapment.
(People v. Federico (2011) 191 Cal.App.4th 1418, 1422; People v. Salas (2006) 37
Cal.4th 967, 982.) And we review a claim of instructional error de novo. (People v.
Manriquez (2005) 37 Cal.4th 547, 581.)
        C.     Our Analysis
        We need not decide whether the trial court erred in failing to instruct the jury
pursuant to CALCRIM No. 3408 because even if error occurred, it was harmless beyond
a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
        Following a review of this record on appeal, it is obvious that the intent to commit
the crime originated with defendant. (People v. Benford, supra, 53 Cal.2d at p. 10.)
        A review of the recorded conversations plainly supports Ferree’s testimony and
would have only served to enhance Ferree’s credibility. And although defendant claims
Ferree’s credibility was suspect due to a June 2009 incident wherein Ferree was found to
have a cell phone on his person as he arrived at the state prison to begin work, the
evidence very plainly revealed that on that occasion Ferree had inadvertently left his
personal cell phone in a pocket of his uniform. Moreover, Ferree’s testimony in that
regard was corroborated by the testimony of Amaro.
        Further, despite defendant’s self-serving testimony that he was not offering a bribe
to the officer in any manner and he was only trying to agree with Ferree so Ferree would
leave him alone, defendant’s own words in the recorded conversations can in no way be
reasonably interpreted to support his version of the events. Read in context, it is plain the

                                              7.
recordings corroborate Ferree’s testimony in every way. The recordings also serve to
directly contradict defendant’s trial testimony.
       For instance, during trial testimony, defendant denied providing Ferree with a list
of documents he wished removed from his central file. Nevertheless, it is apparent from
the recorded conversation that a document was provided to Ferree during the meeting of
August 31, 2010:

               “FERREE: … What exactly is it, what do you [want] pulled out of
       the file?

               “COX: This right here.

               “FERREE: Damn.

               “COX: Cause see all that’s pertaining to the uhm, the 115 ….”
Additionally, defendant testified Ferree was “desperate himself” and “in desperation
himself,” apparently implying Ferree needed money and was thus harassing defendant
about removing documents from his file in exchange for cash. And yet, in the recordings
played for the jury, at one point defendant can be heard saying he was “on desperate
measures at this time,” referring to his own ongoing efforts to have certain documents
removed from his central file ahead of his next parole board hearing. Lastly, defendant
claimed during his testimony that he had never spoken to Ferree prior to August 31,
2010, about paying another officer money to remove documents from his central file.4
However, throughout the first recorded conversation, defendant routinely admits to
having previously paid another officer to remove documents from his central file, and it
is clear Ferree and defendant have discussed the topic prior to the recorded conversation.
Most significantly, it is defendant who brings up the topic of paying the other officer,
without any prompting whatsoever. (People v. Strohl, supra, 57 Cal.App.3d at p. 368
[trier of fact may infer wrongful intent from defendant’s words and conduct].)

       4Amaro testified the investigation into the correctional officer identified by defendant
was being handled by internal affairs, rather than the ISU.



                                                8.
       Finally, although the court did not specifically instruct on the defense of
entrapment, that defense was effectively encompassed in the court’s other instructions.
The court told the jury that in order to convict defendant of bribery of an executive
officer, the prosecution had to prove beyond a reasonable doubt that defendant gave or
offered a bribe to Ferree and “acted with the corrupt intent to unlawfully influence that
officer’s official act, decision, or conduct.” It also instructed the jury that in order to find
defendant guilty it must conclude he acted with specific intent to commit bribery. Thus,
if, as defense counsel argued, defendant simply offered and provided money to Ferree as
a way to get Ferree to stop harassing him, he would not be guilty of bribery.
       In sum, even assuming the trial court should have instructed on entrapment, the
error was harmless even if it can be said to have violated defendant’s constitutional
rights. (See People v. Demetrulias (2006) 39 Cal.4th 1, 23 [assuming standard of
Chapman v. California, supra, 386 U.S. 18 applies]; People v. Manriquez, supra, 37
Cal.4th at p. 588.) If jurors had believed defendant’s version of events—which
constituted the only possible evidence supportive of an entrapment defense—they would
have acquitted him of the offense. The jury’s verdict finding defendant guilty of Penal
Code section 67 constitutes an implicit rejection of his version of events, thus eliminating
any doubt the jury would have returned the same verdict had it been instructed on the
defense of entrapment. (People v. Demetrulias, supra, at p. 24; People v. Manriquez,
supra, at p. 588.) Because there is overwhelming admissible evidence in the record,
including recorded conversations plainly establishing defendant offered to bribe Ferree,
we conclude any purported error in failing to instruct the jury regarding the defense of
entrapment was harmless beyond a reasonable doubt.
2.     The Denial of Defendant’s Pitchess Motion
       Defendant complains the court erred when it denied his Pitchess motion without
conducting an in camera review. We do not agree.
       Defendant filed a motion seeking an order from the court to permit review of
Ferree’s personnel records. Real party in interest, the California Department of

                                               9.
Corrections and Rehabilitation, opposed the motion. The court denied the motion,
finding as follows:

       “All right, the Court finds that the affidavit has failed to articulate a specific
       factual scenario establishing a plausible factual foundation for the
       allegations of misconduct and the Pitchess motion will be denied.”
       Pursuant to Pitchess, supra, 11 Cal.3d at pages 537-538, a defendant is entitled to
discovery of an officer’s confidential personnel records if those files contain information
that is potentially relevant to the defense. (See Evid. Code, §§ 1043–1045.) To exercise
this right, a defendant must file a motion demonstrating good cause for the discovery
which, if granted, results first in an in camera court review of the records and subsequent
disclosure to the defendant of information “relevant to the subject matter involved in the
pending litigation.” (Evid. Code, § 1045, subd. (a).)
       Establishing “good cause” requires the defendant to demonstrate a “specific
factual scenario” that establishes a “plausible factual foundation” for the allegations of
officer misconduct. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86.)
A factual scenario is “plausible” if it is one that “might or could have occurred.”
(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1026.)
       Assertions in the affidavits “may be on information and belief and need not be
based on personal knowledge [citation], but the information sought must be requested
with sufficient specificity to preclude the possibility of a defendant’s simply casting
about for any helpful information [citation].” (People v. Mooc (2001) 26 Cal.4th 1216,
1226.) As such, “a declaration by counsel on information and belief is sufficient to state
facts to satisfy the ‘materiality’ component of that section. [Citation.]” (Abatti v.
Superior Court (2003) 112 Cal.App.4th 39, 51.)
       The trial court has broad discretion in ruling on both the good cause and disclosure
components of a Pitchess motion, and its ruling will not be disturbed absent an abuse of
that discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; Haggerty v.
Superior Court (2004) 117 Cal.App.4th 1079, 1086; People v. Hughes (2002) 27 Cal.4th
287, 330.)
                                              10.
       Defendant contends he established good cause based on “Ferree’s admitted and
documented incidents of violating prison regulations and omitting relevant facts from
reports.” He argues that entitled him to an in camera review of Ferree’s personnel
records concerning any discipline, complaint, or investigation “which related to
violations of departmental policy, planting evidence, fabricating reports and/or falsifying
evidence.”
       Plaintiff argues the trial court properly exercised its discretion when it denied
defendant’s motion because defendant, as the court found, “failed to present a plausible
and specific factual scenario of officer misconduct.”
       Specifically, on information and belief, defense counsel’s declaration stated the
following, in relevant part:

               “7. Good cause exists for the disclosure of the discovery sought and
       the information sought is material to the subject matter of the pending
       litigation because an issue at trial in this case will be whether Officer Ferree
       was engaged in misconduct while employed as a correctional officer at
       Avenal State Prison and whether as a part of that misconduct he initiated all
       contact between himself and defendant …, solicited defendant …, and
       induced defendant … into allegedly committing the bribery;

              “8. Good cause and materiality further exist because the credibility
       of Officer Ferree will be an issue at trial in this case;

              “9. The above-listed materials are necessary for the proper
       preparation of this case for trial. The materials may be used to locate and
       investigate witnesses and other evidence to show a tendency or propensity
       on the part of Officer Ferree to violate departmental policy, plant evidence,
       fabricate reports and/or falsify evidence, and to show that Officer Ferree
       acted in conformity with that character at the time of this incident.”
       While defendant is correct that a low threshold is required to demonstrate good
cause for an in camera review of an officer’s personnel files, he failed to meet even that
minimal level in presenting a “specific factual scenario of officer misconduct.” (Warrick
v. Superior Court, supra, 35 Cal.4th at p. 1025; see, e.g., People v. Collins (2004) 115
Cal.App.4th 137, 151 [affirming denial of Pitchess motion without in camera review
where “defendant’s declaration merely made general allegations of misconduct against

                                             11.
(the officers) without alleging any facts that provided reason to believe the misconduct
had occurred”].)

               “To determine whether the defendant has established good cause for
       in-chambers review of an officer’s personnel records, the trial court looks
       to whether the defendant has established the materiality of the requested
       information to the pending litigation. The court does that through the
       following inquiry: Has the defense shown a logical connection between the
       charges and the proposed defense? Is the defense request for Pitchess
       discovery factually specific and tailored to support its claim of officer
       misconduct? Will the requested Pitchess discovery support the proposed
       defense …? Under what theory would the requested information be
       admissible at trial? If defense counsel’s affidavit in support of the Pitchess
       motion adequately responds to these questions, and states ‘upon reasonable
       belief that the governmental agency identified has the records or
       information from the records’ [citation], then the defendant has shown good
       cause for discovery and in-chambers review of potentially relevant
       personnel records of the police officer accused of misconduct against the
       defendant.” (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1026-
       1027.)
       Exhibit A to defendant’s Pitchess motion plainly reveals Ferree’s having entered
Avenal State Prison in possession of his personal cell phone prior to the start of his shift
was an inadvertent act. Further, it reveals no adverse action was taken against Ferree for
that unintentional behavior. Exhibit B to defendant’s motion is Ferree’s incident report
concerning the alleged bribe. Ferree acknowledged he was approached by defendant for
the same purpose some eight months prior to the crime alleged. Ferree noted he did not
report that incident because he believed defendant “was just trying to test” him, and he
had not taken defendant’s conduct seriously.
       An officer’s unintentional mistake of bringing his personal cell phone onto prison
grounds, coupled with that officer’s election not to report a prior request by defendant to
remove documents from defendant’s central file in exchange for cash because the officer
did not believe the request was sincere, in no way established a connection between the
proposed discovery and a defense to the charge alleged. Defendant’s declaration failed to
explain how an inadvertent error and a reasonable exercise of discretion regarding
whether to report certain expected inmate behavior amounted to officer misconduct and

                                             12.
good cause. Defendant simply did not demonstrate a logical connection between the
information he sought and the proposed defense to the charges.
      Thus, we find the trial court did not abuse its discretion in denying defendant’s
motion.
                                    DISPOSITION
      The judgment is affirmed.
                                                        __________________________
                                                                           PEÑA, J.
WE CONCUR:


 __________________________
KANE, Acting P.J.


 __________________________
POOCHIGIAN, J.




                                           13.
