Filed 5/4/15 P. v. Bain CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO


THE PEOPLE,                                                          B255181

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA415663)
         v.

MARIO LAFAYETTE BAIN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Bob S.
Bowers, Jr., Judge. Affirmed.


         Elana Goldstein, under appointment by the Court of Appeal, for Defendant and
Appellant Christopher Alvara.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Mario Lafayette Bain (defendant) appeals from his
conviction of possession of narcotics for sale, challenging only the denial of his
“Pitchess” motion1 for the discovery of information in the personnel files of three officers
from the Los Angeles Police Department. As we conclude that the trial court did not
abuse its discretion in denying the motion, we affirm the judgment.

                                     BACKGROUND
Procedural history
       In an amended information defendant was charged in count 1 with the sale,
transportation, or offering to sell a controlled substance in violation of Health and Safety
Code section 11352, subdivision (a), and in count 2, with possession for sale of cocaine
base in violation of Health and Safety Code section 11351.5. As to both counts, the
information alleged that defendant had suffered two prior serious or violent felony
convictions within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subd. (d),
1170.12, subd. (b))2 and section 1170, subdivision (h)(3). It was further alleged as to
both counts that defendant had served four prior prison terms within the meaning of
section 667.5, subdivision (b) and had suffered five prior felony convictions within the
meaning of section 1203, subdivision (e)(4).
       A jury acquitted defendant of count 1, but found him guilty in count 2 as charged.
Defendant waived trial on the prior convictions and admitted the allegations. The trial
court struck the punishment as to one of the prior strike convictions and imposed a
second-strike sentence.3 On March 25, 2014, the trial court sentenced defendant to a total
term of 10 years in state prison, comprised of the middle term of four years, doubled
pursuant to the Three Strikes law, plus consecutive terms of one year each for two of the
prior prison terms. Defendant was given presentence custody credit of 211 actual days,

1
       See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); Penal Code
sections 832.7 and 832.8; Evidence Code sections 1043 through 1045.
2
       All further statutory references are to the Penal Code unless indicated otherwise.
3
       See section 1385, subdivision (c)(1).

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plus 210 days of conduct credit. Defendant was ordered to pay mandatory fines and fees,
and to register under Health and Safety Code section 11590.
       Defendant filed a timely notice of appeal.
Pitchess motion
       Prior to trial, defendant brought a Pitchess motion seeking information in the
personnel records of three police officers, Williams, McCauley, and Calderon, relating to
any alleged conduct amounting to excessive force or dishonesty. Attached to the motion
was a copy of the arrest report, signed by Officer Williams and Detective
Kanchanamongkol, in which Officer Williams reported that on August 27, 2013, at about
8:15 p.m., he was working undercover in plain clothes with the Department’s Narcotics
Task Force, near the intersection of Sixth Street and San Julian Street in Los Angeles.
The team consisted of approximately 15 officers.
       As Officer Williams walked west on the south sidewalk of Sixth Street he
encountered defendant, who walked toward him and said, “Cavi cavi,” which is street
vernacular for rock cocaine. Officer Williams replied, “I need a dub,” which is street
vernacular for $20 worth of narcotics. Defendant replied, “Yeah, I have to go to my ass
for that amount,” as he reached into his rear waistband area and sat down in a nearby
wheelchair. Defendant produced a clear plastic bag containing numerous smaller bindles
of off-white solids resembling rock cocaine. He then extracted one of the bindles and
gave it to Officer Williams after the officer handed him a prerecorded $20 bill. Shortly
after Officer Williams gave the predetermined “buy” signal to other officers who had
observed the transaction, defendant was detained by Officers Lozano and Nguyen and
then arrested. From the seat of the wheelchair Officer McCauley recovered 111 plastic
bindles containing off-white solids resembling rock cocaine. Officer Nguyen found
currency totaling $176 on defendant’s person. The $176 included two $20 bills, three
$10 bills, seven $5 bills and 69 one dollar bills, but the prerecorded $20 bill was not
found, despite a search of the area by the responding officers. Detectives Mossman,
Kanchanamongkol, and Garde monitored Officer Williams’s transmission throughout his
interaction with defendant via a one-way transmitter.

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          Defense counsel supported the motion with her declaration, which included the
following paragraph: “Defendant Bain was walking on the corner of Wall St. and 6th, in
the city and county of Los Angeles. Defendant denies saying the words ‘Cavi, Cavi’ to
anyone. Defendant never heard anyone, including an undercover officer, say to him ‘I
need a dub.’ Defendant denies ever having a conversation with anyone, which consisted
of him saying ‘yeah, I have to go to my ass for that amount.’ Defendant was walking
down the street, minding his own business, when the police stopped and searched him.
The police did not find any illegal drugs on him during the search. Defendant denies ever
sitting in a wheelchair. Defendant denies ever owning or possessing a wheelchair, or
having sat in one on the day of his arrest. Defendant did not reach into his waist band
area with his right hand, and did not remove a large clear plastic bag containing
numerous off white solids resembling rock cocaine. Defendant adamantly denies ever
giving anyone one [sic] a small clear plastic bindle containing an off white solid
resembling rock cocaine in exchange for $20.00. Defendant did not take or accept a
twenty dollar bill from anyone. Defendant did not sit in a wheelchair at any time.
Defendant was walking on the street when officers rushed him, searched him, failed to
find illegal substances on his person, but arrested him anyway.”
          Counsel also stated on information and belief that Officers Williams, McCauley,
and Calderon all lied about the events, that that this would be the defense raised at trial.
          The trial court denied the Pitchess motion. The court acknowledged the low
threshold for showing good cause, but found that defendant’s showing was merely a
denial.
                                         DISCUSSION
          Defendant contends that the trial court abused its discretion in denying the
Pitchess motion, and asks that we remand for an in camera hearing concerning the
officers’ personnel records.
          “[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.]” (People v. Gaines (2009) 46

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Cal.4th 172, 179 (Gaines), citing Evid. Code, § 1043, subd. (b); City of Santa Cruz v.
Municipal Court (1989) 49 Cal.3d 74, 84 (City of Santa Cruz); Pitchess, supra, 11 Cal.3d
531.) “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.]” (Gaines, supra, at p. 179, citing Chambers v. Superior Court (2007) 42
Cal.4th 673, 679.)
       Trial courts have broad discretion in ruling on such motions and should carefully
balance the conflicting, substantial interests of the officers as well as the defendant.
(Alford v. Superior Court (2003) 29 Cal.4th 1033, 1043.) The trial court’s decision is
reviewed under an abuse of discretion standard. (People v. Cruz (2008) 44 Cal.4th 636,
670.) Under that standard, judicial discretion is abused only when the court exceeds the
bounds of reason under all of the circumstances by making an arbitrary or capricious
determination. (People v. Giminez (1975) 14 Cal.3d 68, 72.)
       The required showing of good cause may be established by defense counsel’s
declaration, which “must propose a defense or defenses to the pending charges.”
(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024 (Warrick).) Counsel’s
declaration must set forth a “specific factual scenario” establishing a “plausible factual
foundation” for the allegations of police misconduct. (City of Santa Cruz, supra, 49
Cal.3d at pp. 84-86; see also Warrick, supra, at p. 1019.) This does not mean that the
trial court determines whether the potential defense is credible or persuasive. (Gaines,
supra, 46 Cal.4th at p. 182; see Warrick, at p. 1026.) In this context, “plausible” means
that defendant’s scenario could or might have occurred and that it is internally consistent.
(Warrick, at pp. 1016, 1025-1026.)
       Although the standards for making a showing of good cause are “relatively
relaxed” under the statutory scheme, defendant must “establish not only a logical link
between the defense proposed and the pending charge, but also . . . articulate how the
discovery being sought would support such a defense or how it would impeach the
officer’s version of events.” (Warrick, supra, 35 Cal.4th at p. 1021.) “These
requirements ensure that only information ‘potentially relevant’ to the defense need be

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brought by the custodian of the officer’s records to the court for its examination in
chambers. [Citations.]” (Id. at p. 1024.) The “factual scenario, depending on the
circumstances of the case, may consist of a denial of the facts asserted in the police
report.” (Id. at pp. 1024-1025; see also Garcia v. Superior Court (2007) 42 Cal.4th 63,
71-72 (Garcia) [simple denial or alternative version, depending on circumstances].)
       Counsel’s declaration consisted of a statement that defendant denied most of the
material portions of the police report, concluding that Officers Williams, McCauley, and
Calderon all lied about the events, and that this would be the defense raised at trial. The
only affirmative facts were: “Defendant was walking down the street, minding his own
business, when the police stopped and searched him”; and “Defendant was walking on
the street when officers rushed him, searched him, failed to find illegal substances on his
person, but arrested him anyway.” Contrary to defendant’s assertion, such facts were not
alternative, additional, different, or inconsistent with those in the police report.
According to the police report, defendant was indeed walking when he was approached,
officers detained him, and the narcotics were found on the wheelchair.
       We agree with the trial court that counsel’s declaration amounted to no more than
a denial of the facts stated in the police report. Defendant contends that denial of the
facts in the police report is sufficient to show good cause, and that simple denials were
held to be sufficient in Warrick and in the case Warrick cited as an example, People v.
Hustead (1999) 74 Cal.App.4th 410 (Hustead). We disagree. In both cases, the
defendant offered a factual scenario that provided a foundation for his claim of officer
misconduct. In Warrick, the police report stated that three police officers on patrol
noticed defendant standing next to a wall holding a baggie containing off-white solids;
the officers approached; the defendant fled, discarding off-white lumps resembling rock
cocaine; one of the officers retrieved 42 lumps from the ground; and when the two other
officers arrested the defendant after a short pursuit, he held an empty baggie in his hand
and had $2.75 cash in his pockets. (Warrick, supra, 35 Cal.4th at p. 1016.) Defense
counsel’s declaration did in fact suggest an alternate version of the events, explaining that
the defendant fled when the officers got out of the patrol car, because he feared an arrest

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on an outstanding parole warrant, and when the officers caught up with him “‘people
[were] pushing and kicking and fighting with each other’” as they collected rock cocaine
from the ground; two officers retrieved some of the rocks; when one of them told the
defendant he must have thrown it, defendant denied possessing or discarding any rock
cocaine, and explained he was in the area to buy cocaine from a seller there. (Id. at p.
1017.) Defense counsel linked this version to the potential defense by suggesting “that
the officers, not knowing who had discarded the cocaine, falsely claimed to have seen
defendant, who was running away, do so.” (Ibid.) In Hustead, the police report
described in detail a high-speed automobile chase by a solo patrol officer; in addition to
denying he drove in the manner described by the report, the declaration set forth that
defendant drove a different route, which provided the factual foundation for claiming that
the officer made false accusations. (Hustead, supra, at pp. 412-413, 416-417.)
       We reject any suggestion in defendant’s argument that a simple denial of the
police report account is always sufficient to show good cause. As explained in Warrick
and Garcia, whether a denial alone is sufficient depends upon the circumstances.
(Warrick, supra, 35 Cal.4th at pp. 1024-1025; Garcia, supra, 42 Cal.4th at pp. 71-72.)
The circumstances in this case closely resemble those in People v. Thompson (2006) 141
Cal.App.4th 1312 (Thompson), which was decided after Warrick. In Thompson, the
police report noted that an undercover officer, wearing a wire monitored by two
detectives, purchased narcotics from the defendant while several officers watched the
transaction; afterward, another officer found the buy money in the defendant’s
possession. (Thompson, supra, at p. 1317.) “A declaration from defense counsel stated
that ‘the officers did not recover any buy money from the defendant, nor did the
defendant offer and sell drugs to the undercover officer.’ The ‘officers saw defendant
and arrested him because he was in an area where they were doing arrests.’ When
‘defendant was stopped by the police and once they realized he had a prior criminal
history they fabricated the alleged events and used narcotics already in their possession
and attributed these drugs to the defendant.’ The charges ‘are a fabrication manufactured
by the officers to avoid any type of liability for their mishandling of the situation and to

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punish the defendant for being in the wrong area, at the wrong time and for having a prior
criminal history. . . .’” (Ibid.)
       The Thompson court affirmed the trial court’s denial of the Pitchess motion
because the declaration merely denied the elements of the offense, without presenting a
factual account of the scope of the alleged police misconduct, explaining the defendant’s
own actions in a manner that supported his defense, suggesting a nonculpable reason for
his presence in an area where drugs were being sold or for being singled out by the
police, or asserting “any ‘mishandling of the situation’ prior to his detention and arrest.”
(Thompson, supra, 141 Cal.App.4th at p. 1317.) Similarly here counsel’s declaration
offered no factual scenario suggesting a nonculpable reason why defendant was in the
area of suspected drug activity, why he had $176 in the denominations found on him, or
why the officers might have singled him out; nor did it present any other facts that could
support a defense that a transaction observed by 15 police officers and two detectives was
a total fabrication.
       Defendant suggests that we disagree with Thompson, because the California
Supreme Court later confirmed in Garcia that “[d]epending on the circumstances of the
case, the scenario may be a simple denial of accusations in the police report or an
alternative version of what might have occurred. [Citation.]” (Garcia, supra, 42 Cal.4th
at p. 72.) Garcia did not describe the circumstances that might justify a simple denial or
what facts would be a sufficient scenario, as the issue in that case was whether defense
counsel’s declaration was properly filed under seal. (See id. at p. 68.) Further, our high
court also confirmed that it remained necessary to present a plausible factual foundation
that establishes a “‘logical link between the defense proposed and the pending charge,’”
and that defense counsel’s declaration should “‘articulate how the discovery being sought
would support such a defense or how it would impeach the officer’s version of events.’”
(Id. at pp. 71-72, quoting Warrick, supra, 35 Cal.4th at pp. 1021, 1024-1026.)
       In any event, Thompson is not at odds with the holdings of Warrick or Garcia.
The Thompson court distinguished the facts from those of Warrick, pointing out that the
defendant in Warrick did not simply deny the facts alleged in the police report, but

                                              8
offered an alternate reason for his flight from officers, for the presence of the rock
cocaine on the ground, and for the officer’s belief that it had been thrown by the
defendant. (Thompson, supra, 141 Cal.App.4th at pp. 1317-1318, citing Warrick, supra,
35 Cal.4th at pp. 1016-1017.) The Thompson defendant did not do so, and defendant did
not do so here.
       Defendant argues that he did in fact present an alternative version by stating that
he had been “walking down the street, minding his own business, when the police
stopped and searched him.” An alternative version would be a different version. As
defendant’s explanation was consistent with the accusation that he was walking down the
street, it is not an alternative version. Similarly, defendant contends that an alternative
version was presented by counsel’s statement that the police failed to find drugs on
defendant’s person. This was not an alternative version, as the police report contains the
fact that the narcotics were recovered from the seat of the wheelchair.
       Finally, defendant argues that a possible defense based upon fabrication is
supported by the statement in the police report that the buy money, a prerecorded $20
bill, was not found despite a search by chase officers. To the extent that the failure to
find the buy money can be construed as a “‘mishandling of the situation’ prior to
[defendant’s] detention and arrest,” it remains that the declaration failed to present any
factual scenario that might help to explain the scope of the alleged fabrication.
(Thompson, supra, 141 Cal.App.4th at p. 1317.) Defendant made no request as in
Garcia, to file defense counsel’s declaration under seal or to redact attorney work product
or privileged information; he simply failed to provide any facts relating to defendant’s
nonculpable reason for being in the area of suspected drug activity with $176 in the
denominations found on him, or give any reason why the officers might have singled him
out. Under such circumstances we find no merit to the suggestion that a truthful
statement in the police report, relating to possible misconduct or negligence by one or
more of the six chase officers after defendant’s arrest, can be sufficient by itself to
provide a “specific factual scenario” establishing a “plausible factual foundation” for the



                                              9
allegations of police misconduct. (City of Santa Cruz, supra, 49 Cal.3d at pp. 84-86; see
also Warrick, supra, 35 Cal.4th at p. 1019.)
       In sum, defendant has failed to demonstrate that the circumstances raised in this
case amounted to anything other than a mere denial of the facts asserted in the police
report. Thus, we find no abuse of discretion in the trial court’s refusal to examine or
order the disclosure of the officers’ personnel records.
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                    ____________________________, J.
                                                    CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
HOFFSTADT




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