Filed 10/21/14 P. v. Moore 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067118
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF139573B)
                   v.

BRYSON DUPREE MOORE,                                                                     OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Jerold L.
Turner, Judge.
         Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
                                    INTRODUCTION
       On December 1, 2011, appellant was arrested after attempting to discard a packet
of methamphetamine in the presence of two police officers. Following a jury trial,
appellant was convicted of transporting methamphetamine (count 1; Health & Saf. Code,
§ 11379, subd. (a)), possessing methamphetamine for sale (count 2; Health & Saf. Code,
§ 11378), and willfully, unlawfully, and actively participating in a criminal street gang
(count 3; Pen. Code, § 186.22, subd. (a)). Enhancement allegations attached to counts 1
and 2 as offenses committed for the benefit of, at the direction of, or in association with a
criminal street gang and with the specific intent to promote, further or assist in criminal
conduct by gang members (Pen. Code, § 186.22, subd. (b)(1)). The information also
alleged that appellant had six prior felony convictions, but the trial court struck five of the
six prior convictions for sentencing purposes. Appellant was sentenced to a total of 17
years in prison, and the trial court imposed additional fines and fees.
       On appeal, appellant argues that (1) the trial court abused its discretion by denying
appellant’s Pitchess motion to discover certain files within the personnel files of his
arresting officers, and (2) there was insufficient evidence to support appellant’s
conviction for active gang participation. Neither of these arguments is persuasive and the
judgment will be affirmed.
                                           FACTS
       On December 1, 2011, Bakersfield Police Department Officers Matthew Gregory
and Andrew Ferguson observed a red vehicle pull up to a residence, and two men exit the
vehicle. Gregory recognized one of the men as appellant whom he knew to be a parolee
and member of the East Side Crips street gang. The officers approached the two men
and, as they did so, appellant discarded an object into the grass.
       Following Gregory’s observation, the officers detained appellant and the other
man, later identified as Vernon Mixon. Gregory retrieved the discarded package and saw


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it was a plastic bag containing 3.23 grams of methamphetamine. The officers did not
find any additional drugs or drug paraphernalia on appellant’s person, but did recover
appellant’s cellular phone.
       The officers then conducted a consensual search of the residence which belonged
to appellant’s aunt. She directed the officers to appellant’s belongings, where the officers
recovered a black backpack containing a digital scale. Appellant was then placed under
arrest and read his Miranda1 rights. Appellant initially denied any knowledge of the
methamphetamine that was recovered, but later stated that Mixon passed the bag of drugs
to appellant when he observed the officers approach.
                                        DISCUSSION
I.     The Trial Court Did Not Abuse Its Discretion By Denying Appellant’s
       Pitchess Motion.
       A.     Facts.
       Prior to trial, appellant filed a Pitchess2 motion seeking disclosure of any materials
within the personnel records of Officers Gregory and Ferguson relating to “[l]ack of
credibility,” “acts involving moral turpitude,” “[d]ishonesty/untruthfulness/veracity/false
testimony/false arrest/conduct unbecoming an officer/neglect of duty,” and “[r]acial
discrimination; racial profiling; racial bias[.]”
       Attached to this motion was an affidavit by defense counsel averring, in relevant
part, that the officers did not recognize appellant prior to approaching him, were the only




1      Miranda v. Arizona (1966) 384 U.S. 436.
2      See Pitchess v. Superior Court (1974) 11 Cal.3d. 531. The California Legislature
codified the privileges and procedures set out in Pitchess through the enactment of Penal
Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. (City of
Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81.)



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witnesses who observed appellant making a throwing motion, and arrested appellant and
Mixon “simply because they were two young black men out at night in a targeted
area.”
         The affidavit also stated that the documents sought were material to the defense, as
they “cast doubt on the sequence of events set forth by the officers,” and it was
“possible” the police were “simply trolling for alleged gang members to set-up and
arrest.”
         The Bakersfield Police Department filed a brief in opposition to the Pitchess
motion, and the trial court denied appellant’s motion for failure to state a specific factual
scenario justifying an in camera review of the officers’ personnel files.
         B.     Standard of Review.
         A trial court’s ruling on a Pitchess motion is reviewed for abuse of discretion.
(Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
         C.     Analysis.
         Peace officer personnel records are confidential and can only be discovered
pursuant to Evidence Code sections 1043 and 1045. (Pen. Code, § 832.7.) In order to
discover such records, a defendant must file a motion stating what records are sought, and
must provide affidavits “showing good cause for the discovery or disclosure sought,
setting forth the materiality thereof to the subject matter involved in the pending
litigation.” (Evid. Code, § 1043, subd. (b)(3).)
         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, supra, 49 Cal.3d at pp. 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.)




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        Establishing “materiality” requires a defendant to show “(1) a logical connection
between the charges and the proposed defense; (2) the requested discovery is factually
specific and tailored to support the claim of officer misconduct; (3) the requested
discovery supports the proposed defense or is likely to lead to information that will do so;
and (4) the requested discovery is potentially admissible at trial. [Citation.]” (Giovanni
B. v. Superior Court (2007) 152 Cal.App.4th 312, 319.) If a defendant establishes both
good cause and materiality, the personnel records at issue are reviewed by the trial court
in camera and relevant documents are released to the defense. (Evid. Code, § 1045, subd.
(b).)
        Here, however, appellant’s Pitchess motion established neither good cause nor
materiality. Rather than asserting a specific factual scenario sufficient to show good
cause, appellant’s motion merely denied that Officers Gregory and Ferguson recognized
appellant, and asserted that appellant was arrested because he was a young Black man in
a targeted area where it was “possible” that police were “trolling for alleged gang
members to set-up and arrest.”
        This vague factual scenario stands in stark contrast with a case appellant relies
upon in his brief on appeal, Warrick v. Superior Court, supra, 35 Cal.4th 1011. In
Warrick, the defendant was charged with possession of cocaine for sale after he ran from
police in an area known for narcotics activity and a large quantity of rock cocaine was
found on the ground near the site of his eventual apprehension. (Id. at pp. 1016-1017.)
In the defendant’s subsequent Pitchess motion, he asserted that he was in the area to
purchase drugs, not sell them, and that he fled from the police because he was in violation
of his parole. (Id. at pp. 1017-1018.) He also asserted that the drugs that were recovered
did not belong to him, but had been dropped by someone in the crowd of people he fled
through. (Ibid.) The Supreme Court later determined that the defendant’s motion
established good cause, as it presented a specific and internally consistent factual


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scenario that supported a defense that the arresting officers lied or were mistaken about
who had spilled the drugs in question. (Id. at p. 1027.)
       When viewed next to the specificity of the factual scenario in Warrick, appellant’s
generalized denials and speculative assertions more closely resemble the Pitchess motion
in People v. Thompson (2006) 141 Cal.App.4th 1312. In that case, the defendant was
arrested after selling drugs to an undercover police officer, and was found in possession
of two $5 bills that were later identified as being from the undercover officer’s purchase
money. (Id. at p. 1315.) In the defendant’s Pitchess motion, he denied buying the drugs,
denied that the purchase money was found on his person, and asserted that the officers
involved in his arrest had arrested him because he was in a targeted area, and then
fabricated the entire incident and planted evidence on the defendant after discovering that
he had a criminal record. (Id. at pp. 1315, 1317.)
       On appeal, the Second District Court of Appeal rejected the defendant’s claim that
the trial court had improperly denied his Pitchess motion, and held that the defendant’s
factual scenario was neither internally consistent nor complete, did not explain the facts
set out in the police report (People v. Thompson, supra, 141 Cal.App.4th at p. 1317), and
merely made “bald assertions that denied the elements of the charged crime.” (Id. at p.
1318.) The Second District also found that “Warrick did not redefine the word
‘plausible’ as synonymous with ‘possible,’ and does not require an in camera review
based on a showing that is merely imaginable or conceivable and, therefore, not patently
impossible.” (Id. at p. 1318.)
       Like the defendant in Thompson, appellant’s Pitchess motion alleged that he was
only arrested for being in a targeted area, and that the police subsequently fabricated
evidence to support charging appellant with a drug offense. However, unlike the valid
Pitchess motion in Warrick, appellant’s motion failed to lay out a reasonably specific
alternative scenario that accounted for the evidence supporting the charges. Accordingly,


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appellant’s motion was factually deficient and did not establish good cause for discovery
of the requested information.
       Further, appellant’s Pitchess motion failed to establish materiality by setting out
any logical connection between the charges and a proposed defense, or by showing the
requested discovery supported a proposed defense or was likely to lead to information
that would do so. Appellant’s motion fails to address the ownership or authenticity of the
drugs found at the scene, as well as appellant’s statements at the scene confirming he was
aware of the drugs. Instead, the affidavit in support of appellant’s motion only addresses
the motives of the arresting officers at the time they approached appellant, not the
validity of the charges or the elements of the charged offense.
       For these reasons, we uphold the denial of appellant’s Pitchess motion as a
reasonable exercise of judicial discretion.
II.    There Was Substantial Evidence to Support Appellant’s Conviction for
       Active Gang Participation.
       A.     Facts.
       At trial, Officer Gregory testified that appellant’s phone had pictures of marijuana
and baggies that suggested that the marijuana was for sale and not for personal use, as
well as text messages referring to packaging and selling drugs. He also testified that
appellant admitted that Mixon passed appellant the package of methamphetamine when
Mixon saw the police approaching.
       Officer Robert Woods, who serves on the Bakersfield Police Department Gang
Unit, testified that the text messages on appellant’s phone indicated involvement in the
East Side Crips street gang and made references to the packaging and sale of narcotics.
Woods further testified that appellant’s phone contained pictures of appellant wearing
East Side Crips colors, making East Side Crips gang signs, and posing with known
members of the East Side Crips. He also testified that Mixon was a self-admitted
member of the East Side Crips and that appellant had claimed membership in the East

                                              7.
Side Crips when he was booked following his arrest in this case. Woods further testified
that narcotics sales are a primary activity and source of income for the East Side Crips.
       B.     Standard of Review.
       We view the record in the light most favorable to the conviction and presume the
existence of every fact in support of the conviction the trier of fact could reasonably infer
from the evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) “Reversal is not
warranted unless it appears ‘‘‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].” [Citation.]’ [Citation.]” (People v.
Duran (2002) 97 Cal.App.4th 1448, 1457.)
       C.     Analysis.
       “The elements of the gang participation offense in [Penal Code] section 186.22(a)
are: First, active participation in a criminal street gang, in the sense of participation that is
more than nominal or passive; second, knowledge that the gang’s members engage in or
have engaged in a pattern of criminal gang activity; and third, the willful promotion,
furtherance, or assistance in any felonious criminal conduct by members of that gang.
[Citation.]” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) Penal Code
section 186.22, subdivision (a) does not apply to criminal acts committed by a gang
member acting alone. (Rodriguez, supra, at p. 1139.)
       On appeal, appellant asserts that there was insufficient evidence to establish that
appellant engaged in the promotion, furtherance, or assistance of any gang related
criminal conduct, as there was no evidence showing that appellant was acting in concert
with other gang members. Contrary to appellant’s assertions, however, there was
substantial evidence to establish that appellant was a member of the East Side Crips, that
at the time of his arrest he was with another known member of that gang, and that both
appellant and the other member were aware of the drugs that were seized by the police.
Further, there was evidence on appellant’s cell phone that suggested that appellant was


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not only a member of the East Side Crips, but was also involved in drug dealing for the
financial benefit of that gang, which uses the proceeds from drug sales as a primary
source of income.
       Viewing this direct and circumstantial evidence in the light most favorable to the
conviction, we find there was substantial evidence to support appellant’s conviction for
active gang participation.
                                     DISPOSITION
       The judgment is affirmed.


                                                                _____________________
                                                                      LEVY, Acting P.J.
WE CONCUR:


 _____________________
DETJEN, J.


 _____________________
PEÑA, J.




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