Filed 8/5/13 P. v. Segobia CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055050

v.                                                                       (Super.Ct.No. RIF10001768)

ALBERT VALENTINE SEGOBIA, III,                                           OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.

Affirmed in part; reversed in part.

         Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and Peter Quon,

Jr., Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       A jury found defendant and appellant Albert Valentine Segobia III guilty of

unlawful possession of a syringe in a penal institution (Pen. Code, § 4573.6, count 1),1

and unlawful possession of a drug, to wit, heroin, in a penal institution (§ 4573.8, count

2). Defendant thereafter admitted that he had suffered four prior prison terms (§ 667.5,

subd. (b)) and one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subd. (a)). As

a result, defendant was sentenced to a total term of 10 years in state prison with credit for

time served.

       On appeal, defendant contends: (1) his conviction on count 2 must be reversed

because the Legislature intended a prisoner‟s contemporaneous possession of multiple

items of drug contraband to constitute a single crime; (2) there was insufficient evidence

to his conviction on count 2 because the People failed to introduce any substantial

evidence showing he possessed a “usable quantity” of heroin; and (3) this court should

independently review confidential materials that were examined by the trial court in

camera as part of his discovery motions and to determine if the trial court‟s denial of his

motion was proper.

                                               I

                                FACTUAL BACKGROUND

       On September 10, 2009, defendant was incarcerated at the California

Rehabilitation Center (CRC) in Norco when, at 3:40 p.m., Department of Corrections

Officer Brian Ellis and his partner Officer Read conducted a search of the men‟s


       1   All future statutory references are to the Penal Code unless otherwise stated.


                                               2
dormitory defendant was housed in. The dormitory housed approximately 100 inmates;

however, at the time of the search, about half the inmates housed in the dormitory were

present. As Officer Ellis entered the dormitory, he saw defendant, who was sitting alone

on his lower bunk bed, suspiciously move his right hand toward his nearby unlocked

locker. No other inmates were near defendant.

       Officer Ellis did not see anything in defendant‟s hand, and could not initially see

into the locker. However, because defendant‟s hand movements appeared suspicious,

Officer Ellis contacted defendant and conducted a clothed body search of defendant and

his bed. Officer Ellis did not locate any contraband on defendant or in his bed. Officer

Ellis then searched defendant‟s locker and found an inmate-manufactured syringe made

from the barrel of a black ballpoint pen. Officer Ellis also found a small piece of cotton

and a prison issued spoon. The syringe contained a brown liquid. Officer Ellis

conducted a presumptive field narcotics test of the brown liquid, which resulted in a

positive reaction for heroin. Officer Ellis opined that the amount in the heroin in the

syringe was a “usable amount.”

       The content of the syringe was later sent to the Department of Justice for testing.

Following an analysis of the brown liquid, a criminalist determined the substance

contained “heroin residue” and methamphetamine. The term heroin “residue” is used

when a liquid sample is within a volume less than 0.1 milliliter. Neither the cotton ball

nor the spoon were tested for drug residue, nor were any fingerprints discovered on the

syringe, pen, or spoon.




                                             3
       A prison nurse noted that defendant‟s blood pressure and temperature were

abnormal; that defendant struggled with basic coordination; and that he had needle marks

on his body. The nurse believed defendant was under the influence of drugs and

recommended a urine test. Defendant refused to submit to a voluntary urine test, telling

Officer Ellis, “I used last night. I‟m dirty.”

       Defendant claimed that the syringe did not belong to him but that it was planted by

the Mexican Mafia, a gang that controls narcotics trafficking in prison, to get him in

trouble. He believed that the Mexican Mafia planted the syringe with the drugs because

he made a bad call when he was a “shot caller” and the discovery of the drugs would get

him transferred to CRC Chino, where the gang could more easily order him harmed.

When he returned from the yard, he saw Fernando Chang, a known gang member, near

his prison locker; however, he did not see Chang carrying a pen or see Chang put

anything into his locker. After his arrest in this case, he was transferred to CRC Chino

and housed in protective custody.

       Defendant admitted that he had used another inmate‟s syringe the previous night

to inject heroin, but that he was not under the influence at the time of the locker search.

He explained that drugs are common in prison, with about one-third of the inmates using

heroin, and that inmates routinely set each other up by planting drugs.




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                                               II

                                        DISCUSSION

       A.     Conviction on Count 2

       Defendant contends, and the People correctly concede, that his simultaneous

possession of a syringe while in prison (§ 4573.6) and possession of heroin while in

prison (§ 4573.8) constituted a single crime. We agree.

       Section 4573.6 in pertinent part provides: “Any person who knowingly has in his

or her possession in any state prison . . . any controlled substances, the possession of

which is prohibited by Division 10 (commencing with Section 11000) of the Health and

Safety Code, any device, contrivance, instrument, or paraphernalia intended to be used

for unlawfully injecting or consuming controlled substances, without being authorized to

so possess the same . . . is guilty of a felony punishable by imprisonment . . . for two,

three, or four years.”

       Section 4573.8 states in relevant part: “Any person who knowingly has in his or

her possession in any state prison . . . drugs in any manner, shape, form, dispenser, or

container, any device, contrivance, instrument, or paraphernalia intended to be used for

unlawfully injecting or consuming drugs, or alcoholic beverages, without being

authorized to possess the same by rules of the Department of Corrections . . . or by the

specific authorization of the warden . . . or other person in charge of the prison . . . is

guilty of a felony.”

       Section 4573.8 has parallel meaning with section 4573.6, although broader in

scope. Section 4573.8 is general and section 4573.6 is specific and, thus, the former


                                               5
includes the discrete acts covered by the latter. (People v. DeLaCruz (1993) 20

Cal.App.4th 955, 958.)

       In People v. Rouser (1997) 59 Cal.App.4th 1065, the appellate court was

confronted with the issue of whether contemporaneous possession of more than one

controlled substance constituted more than a single crime under Penal Code section

4573.6, the statute at issue in this case. In analyzing the issue, the Rouser court compared

section 4573.6 with the provisions in the Health and Safety Code prohibiting the

possession of controlled substances. Noting that the Health and Safety Code provision

permitted multiple convictions for possession of multiple substances, the court explained

that the wording of section 4573.6, which prohibited possession of any controlled

substances (plural), indicated that only one offense was committed when a person

simultaneously possessed more than one controlled substance. The Health and Safety

Code, by contrast, prohibited the possession of any controlled substance (singular)

indicating that possession of more than one substance constituted more than one crime.

(Rouser, at pp. 1068-1072.) The court also explained that section 4573.6 was broader

than the Health and Safety Code sections in that section 4573.6 prohibited the possession

of any controlled substance as well as any device, etc., used in injecting or consuming

controlled substances. Conversely, the Health and Safety Code provided different

sections for possession of controlled substances and associated paraphernalia. (Rouser, at

pp. 1071-1072.) In addition, section 4573.6 is aimed at the problems of prison

administration, whereas the Health and Safety Code is designed to protect all persons by

regulating the traffic in controlled substances. (Rouser, at p. 1071.) Based on these


                                             6
factors, the court held that contemporaneous possession in state prison of two or more

discrete controlled substances at the same location constituted one offense under section

4573.6. (Rouser, at p. 1073.)

       These same reasons suggest that a person can only be charged with a single crime

under section 4573.6 when he/she possesses both a controlled substance and a device

used to inject or consume a controlled substance. Otherwise, as the Rouser court

explained, “a prison inmate could be convicted under section 4573.6 of nine counts of

unlawful possession for simultaneously having in his cell a smoking pipe, a hypodermic

kit, marijuana cigarettes, methamphetamine, heroin, cocaine, a mirror, a razor blade, and

LSD tablets. Based on the language of section 4573.6, it is unreasonable to conclude the

Legislature intended such a result.” (People v. Rouser, supra, 59 Cal.App.4th at p. 1072.)

       In this case, defendant was charged under two separate statutes, sections 4573.6

and 4573.8, for simultaneous possession of contraband. Although section 4573.8 is more

general, the two statutes are almost identical. “Prosecution under a general statute is

precluded when the facts of the alleged offense parallel the acts proscribed by a special

statute.” (People v. DeLaCruz, supra, 20 Cal.App.4th 955, 958.) Thus, we agree with

the parties. It would be anomalous to preclude multiple convictions for simultaneous

possession of different items of contraband under section 4375.6, but then allow such

prosecutions simply because an inmate happens to be charged with simultaneous




                                             7
possession of contraband under both 4375.6 and 4375.8. Accordingly, defendant‟s

conviction on count 2, possession of heroin while in CRC (§ 4573.8) must be reversed.2

       B.     Pitchess Discovery

       Defendant requests that we conduct an independent review of the October 18,

2010, and March 16, 2011, in camera proceedings to determine whether the trial court

followed the appropriate procedure and properly exercised its discretion in concluding

that the records did not contain any discoverable information.

       A defendant is entitled to discovery of a police officer‟s confidential personnel

records if those files contain information that is potentially relevant to the defense.

(Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537-538 (Pitchess); Evid. Code,

§§ 1043-1045.) The discovery procedure has two steps. First, a defendant must file a

motion seeking such records, containing 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).) If good cause is shown, the

trial court then examines the records in camera and disclose only those records and

information that are relevant and not subject to exclusion from disclosure. (Evid. Code,

§ 1045, subds. (a) & (b); see also People v. Thompson (2006) 141 Cal.App.4th 1312,




       2 Because we agree with the parties that count 2 should be reversed, it is
unnecessary for us to address defendant‟s argument that count 2 should be reversed
because there was insufficient evidence showing he possessed a “usable quantity” of
heroin.



                                              8
1316.) The threshold for having the trial court conduct an in camera review is relatively

low. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83-84.)

          The trial court is granted wide discretion when ruling on a motion to discover

police officer records (People v. Memro (1995) 11 Cal.4th 786, 832), and we review that

ruling for abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039).

          On August 19, 2010, defense counsel filed a Pitchess motion requesting the

production of personnel records of Officer Ellis, including all records, documents, and

information relating to complaints or allegations alleging dishonesty, lying, fabrication of

charges or evidence, perjury, preparation of a false or misleading police report, or other

acts of moral turpitude reflecting the officer‟s honesty filed against Officer Ellis. At a

hearing on October 18, 2010, the trial court granted the motion and conducted an in

camera review of the materials.3 After examining the custodian of records and reviewing

the applicable records, the court found no discoverable material and ordered the records

sealed.

          On January 19, 2011, defense counsel filed a Pitchess motion requesting the

production of personnel records of Officer Read, including all records, documents, and

information relating to complaints or allegations alleging false arrest, illegal search and

seizure, dishonesty, lying, fabrication of charges or evidence, improper tactics, or neglect

of duty filed against Officer Read. At a hearing on March 16, 2011, the trial court




          3   This hearing was before the Honorable Larrie R. Brainard.


                                                9
granted the motion and conducted an in camera review of the materials.4 After

examining the custodian of records and reviewing the applicable records, the court

ordered information relating to inmate Keandre Session disclosed and ordered the records

sealed.

          Because defendant was not present at the records review hearing, he requests this

court to conduct an independent review of the sealed transcript of the hearing and the

records produced to determine whether any error occurred. The People do not oppose

this request, but reserve a right to address this court should we discover “an irregularity in

those in camera hearings” showing the trial court abused its discretion.

          As requested, we have reviewed the sealed transcripts and conclude the trial courts

properly conducted a Pitchess document review hearing. The records produced during

the in camera hearing, however, were not initially included as part of the record on

appeal. Although the sealed transcripts refer to the documents reviewed, the reviewed

documents are not sufficiently identified and described for this court to determine

whether the produced documents were discoverable.

          Because the record does not include copies of the documents produced or

sufficiently describe each document, under People v. Mooc (2001) 26 Cal.4th 1216

(Mooc), we ordered augmentation of the record for the purpose of creating a record from

which this court could determine whether the documents reviewed by the trial court are

discoverable. (Id. at p. 1231.)


          4   This hearing was conducted by the Honorable Kenneth Andreen.


                                              10
       In Mooc, supra, 26 Cal.4th 1216, as here, the trial court examined the records

provided by the custodian of the requested records and declined to order disclosure. The

appellate court found the record on appeal did not contain the records the trial court had

examined, so it directed the police department to submit such records directly to the

appellate court. Believing the police department and city attorney had improperly

censored the files given to the trial court, the court of appeal ordered the custodian of the

records to deliver directly to the appellate court the entire personnel file of the officer in

question. After examining the entire file, the appellate court concluded that discoverable

records had not been given the trial court, thus preventing the trial court from exercising

its discretion under Pitchess. Accordingly, it reversed the defendant‟s conviction and

remanded with directions that the trial court conduct a new Pitchess hearing and, if the

hearing revealed discoverable information, the trial court was to disclose such before

retrying the case. (Mooc, at pp. 1222-1225.)

       The Supreme Court in Mooc, supra, 26 Cal.4th 1216, concluded that the appellate

court erred in directing the custodian to turn over the officer‟s complete personnel file

directly to the appellate court. (Id. at pp. 1230-1231.) The appropriate remedy was to

remand the case to the trial court with directions to augment the record to reflect the

documents it reviewed. (Id. at p. 1231.) The Mooc court stated that the uncertainty in the

record “justified remanding the case to the trial court with directions to hold a hearing to

augment the record with the evidence the trial court had considered in chambers when it

ruled on the Pitchess motion.” (Mooc, at p. 1231.) However, in Mooc, the Supreme

Court ultimately concluded that the additional delay inherent in causing the matter to be


                                              11
remanded to the trial court to settle the record as to what it had reviewed seemed

“imprudent, if unnecessary.” Accordingly, the Supreme Court simply reviewed the

personnel file itself and concluded it contained nothing disclosable. (Id. at p. 1232.)

       In Mooc, our Supreme Court described the proper procedures to be followed by

the trial court when, as in this case, the trial court concludes that good cause exists for the

trial court to review an officer‟s personnel file in response to a Pitchess motion: “When a

trial court concludes a defendant‟s Pitchess motion shows good cause for discovery of

relevant evidence contained in a law enforcement officer‟s personnel files, the custodian

of the records is obligated to bring to the trial court all „potentially relevant‟ documents to

permit the trial court to examine them for itself. [Citation.] A law enforcement officer‟s

personnel record will commonly contain many documents that would, in the normal case,

be irrelevant to a Pitchess motion, including those describing marital status and

identifying family members, employment applications, letters of recommendation,

promotion records, and health records. (See Pen. Code, § 832.8.) Documents clearly

irrelevant to a defendant‟s Pitchess request need not be presented to the trial court for in

camera review. But if the custodian has any doubt whether a particular document is

relevant, he or she should present it to the trial court. Such practice is consistent with the

premise of Evidence Code sections 1043 and 1045 that the locus of decisionmaking is to

be the trial court, not the prosecution or the custodian of records. The custodian should

be prepared to state in chambers and for the record what other documents (or category of

documents) not presented to the court were included in the complete personnel record,

and why those were deemed irrelevant or otherwise nonresponsive to the defendant‟s


                                              12
Pitchess motion. A court reporter should be present to document the custodian‟s

statements, as well as any questions the trial court may wish to ask the custodian

regarding the completeness of the record. [Citation.]” (Mooc, supra, 26 Cal.4th at

pp. 1228-1229.)

       The Mooc court further stated that during the Pitchess motion hearing, “The trial

court should then make a record of what documents it examined before ruling on the

Pitchess motion. Such a record will permit future appellate review. If the documents

produced by the custodian are not voluminous, the court can photocopy them and place

them in a confidential file. Alternatively, the court can prepare a list of the documents it

considered, or simply state for the record what documents it examined. Without some

record of the documents examined by the trial court, a party‟s ability to obtain appellate

review of the trial court‟s decision, whether to disclose or not to disclose, would be

nonexistent. Of course, to protect the officer‟s privacy, the examination of documents

and questioning of the custodian should be done in camera in accordance with the

requirements of Evidence Code section 915, and the transcript of the in camera hearing

and all copies of the documents should be sealed. (See People v. Samayoa (1997) 15

Cal.4th 795, 825 [after ruling on the Pitchess motion, „[t]he magistrate ordered that all

remaining materials be copied and sealed‟].)” (Mooc, supra, 26 Cal.4th at pp. 1229-

1230, fn. omitted.)

       Here, defendant has demonstrated the materiality of the information requested in

his Pitchess motion. Both parties in this case agree that review by this court of the

records reviewed by the trial court in camera is appropriate. Due to this court‟s inability


                                             13
to determine what records were produced or whether the trial court appropriately denied

disclosure of the records, this court ordered augmentation of the record to enable this

court to review those records produced in the trial court in camera and determine whether

the trial court abused its discretion in not ordering production of any of the records or

information, other than the name, address, and telephone number of inmate Session.

       Based on our review of the sealed reporter‟s transcript of the October 18, 2010 in

camera Pitchess motion proceeding and the sealed augmented record of the documents

reviewed during the trial court hearing, we conclude the trial court properly exercised its

discretion in excluding from disclosure the officers‟ personnel records. (People v.

Samayoa, supra, 15 Cal.4th at p. 827.)

       In regards to the March 16, 2011 in camera Pitchess hearing, this court had

directed the Riverside County Superior Court Clerk to transmit the documents reviewed

by Judge Andreen at that hearing pursuant to Pitchess, supra, 11 Cal.3d 531. The

Superior Court Clerk filed an affidavit on May 9, 2013, stating that Judge Andreen is no

longer participating in the Assigned Judges‟ Program and is therefore unavailable to

settle the record regarding the documents he had reviewed at the March 16, 2011 in

camera hearing. This court has reviewed the sealed reporter‟s transcript for the in camera

hearing held on March 16, 2011, in which the court stated which documents it had

examined, and conclude the sealed reporter‟s transcript is sufficient for a meaningful

appellate review. (People v. Myles (2012) 53 Cal.4th 1181, 1209.) After reviewing the

files, Judge Andreen did order certain information disclosed to defendant‟s counsel and

explained in detail his reasoning. Based on our review of the sealed reporter‟s transcript


                                             14
of the March 16, 2011 in camera Pitchess motion proceeding, we conclude Judge

Andreen did not abuse his discretion. (Myles, supra, 53 Cal.4th at p. 1209.)

                                             III

                                      DISPOSITION

       Defendant‟s conviction on count 2 for possession of heroin while in a penal

institution under section 4573.8 is reversed. The clerk of the superior court is directed to

prepare an amended abstract of judgment reflecting this reversal and noting that

defendant was convicted by jury,5 and forward a certified copy of the amended abstract

to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other

respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                RAMIREZ
                                                                                        P. J.


We concur:


KING
                           J.


CODRINGTON
                           J.



       5  We note that the abstract of judgment states that defendant was convicted by
court trial. However, defendant was convicted by a jury.


                                             15
