Filed 5/26/15 P. v. Williams CA3
                                           NOT TO BE PUBLISHED
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
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                                  C075763

                   Plaintiff and Respondent,                                   (Super. Ct. No. MF034009A)

         v.

LOVELL DONNELL WILLIAMS,

                   Defendant and Appellant.




         In December 2011, defendant Lovell Donnell Williams parked his car in the
driveway of Rod Serrato’s house, went to the front door, and rang the doorbell for about
two minutes. Defendant then looked through a window into the house and jumped a side
fence. Defendant returned to his vehicle, got some gloves and a screwdriver. Five
minutes later, he walked out of the house through a sliding door carrying a turkey pan
containing a plastic bag. He went back in the house and retrieved two more bags.
Serrato’s neighbor, Venil Animaiya, recorded defendant’s license plate number and
called the police.

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       Animaiya believed a person named Rod lived at the house. He had last seen
Serrato about a week earlier. Tracy Police Officer James Harries investigated the
reported burglary. There were no signs of forced entry, the rear sliding door was
unlocked and ajar, and the side sliding door was unlocked, but closed. The inside of the
home appeared as though someone was living there. One of the rooms contained
marijuana plants and grow lights, there appeared to be hashish in the home, and a
certificate on the wall authorizing the bearer to posses the contraband. Harries spoke
with Serrato. Serrato told Officer Harries he lived at the home. Serrato reported several
items had been removed from the home, including a television set, a bottle of tequila, and
some marijuana. Serrato had not given anyone permission to enter the home.
                               PROCEDURAL HISTORY
       Defendant was charged with first degree burglary and six prior prison term
enhancements.
       After being held to answer at the preliminary examination, defendant filed a
nonstatutory motion to dismiss the information based on alleged perjury by Officer
Harries during that hearing. Defendant filed the transcript of an interview by Tracy
Police Officer Gustavo Cisneros with Ray Johnson, who owned a business that cleaned
houses prior to foreclosure sales. Defendant worked for Johnson’s company. Johnson
said his company cleaned homes that are abandoned by the owners, usually in
foreclosures. The company did not remove property of people living in the home, but if
the property appeared abandoned, his employees could enter homes and take property.
Defendant also filed a transcript of Officer Harries’s interview of Serrato. In the
interview, Serrato said the house was vacant and no one had lived there for a while. He
did go there occasionally to look at his cannabis plant in one of the rooms. But he could
no longer afford the home so he was going to have to short sell it. Serrato was not aware
of anyone who was scheduled to come and clean the house. The People responded with a
declaration from Officer Harries which said he had had a second conversation with

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Serrato, the day before the preliminary examination, at which time Serrato told Harries he
had not received a notice to vacate the premises, was negotiating with the bank, and slept
at the home two or three times a week.
       Defense counsel argued the People had failed to provide defendant with
exculpatory evidence when they did not provide the audiotapes of the Serrato and
Johnson interviews until after the preliminary examination, and the information available
“would have created a very different preliminary hearing.”
       After hearing argument, the trial court denied the motion. The trial court “added
the non-disclosed information to the evidence, . . . , and retested for probable cause. The
Court has looked at the materiality of the non-disclosed information and what effect it
had on the determination of probable cause . . . . [¶] The statement by Mr. Serrato that
the house was vacant . . . that statement is outweighed for purposes of a finding of
probable cause by the statement that he went to the residence two times per week to
check on his cannabis plant, [and] the neighbor Venil Animaiya having identified Mr.
Serrato as the resident of the house in question. And that’s from the preliminary hearing
transcript. Mr. Serrato’s statement to Officer Harries that he resided in the house. And
that is from the declaration of Officer Harries. That there were items in the -- in the
downstairs rooms of the residence, and that there was a room actively being used for
growing marijuana, and that the back yard [sic] was still in a livable state, and that guns
registered to Mr. Serrato were stored in the house. [¶] Based on the testimony presented
at the preliminary hearing, the evidence from the tapes not available to the defendant at
the preliminary hearing, the Court has determined that the prosecution’s nondisclosure of
the exculpatory information did not affect the determination of probable cause and that
defendant is not entitled to a dismissal of the information.”




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       Following the denial of the motion to dismiss, defendant filed a Pitchess1 motion
to obtain discovery of any complaint or disciplinary action against Officers Harries and
Cisneros, to impeach one or both at trial. The motion argued the discovery could be used
to locate witnesses who could testify that one or both of the deputies had a character “for
fabricating charges and/or evidence, false arrest, excessive force, racial motivation.” At
the hearing, defense counsel argued that the audiotapes of the interviews contradicted
Officer Harries’s preliminary hearing testimony and both officer’s reports were
misleading.
       The trial court found defendant had not made a showing of good cause to justify
reviewing the officers’ records. The trial court found the records were not relevant
because defendant had the audiotapes with which to impeach the officers’ credibility.
Therefore, the trial court denied the Pitchess motion without conducting an in camera
review of the personnel records.
       Defendant pled no contest to first degree burglary. The enhancement allegations
were dismissed on the People’s motion. In accordance with the stipulated sentence, the
trial court sentenced defendant to a term of four years in state prison. The trial court
awarded defendant 1,464 days of presentence custody credit. Accordingly, the trial court
released defendant based on time served and placed him on parole. The trial court
ordered defendant to pay a $280 restitution fund fine and a matching parole revocation
fine, stayed pending successful completion of parole, a $40 court security fee, and a $30
conviction assessment fee. The trial court granted defendant’s request for a certificate of
probable cause.




1      Pitchess v. Superior Court (1974) 11 Cal.3d 531.

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                              PEOPLE V. WENDE REVIEW
       We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d
436, requesting the court to review the record and determine whether there are any
arguable issues on appeal. Defendant was advised by counsel of the right to file a
supplemental brief within 30 days of the date of filing of the opening brief. More than 30
days elapsed and we received no communication from defendant. We have undertaken
an examination of the entire record pursuant to Wende, and we find no arguable error that
would result in a disposition more favorable to defendant.
                                     DISPOSITION
       The judgment is affirmed.



                                                       ROBIE                 , Acting P. J.



We concur:



      MAURO                 , J.



      HOCH                  , J.




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