JOHNSON, J.
Defendant Charles James maintains the trial court erred in refusing to admit video and testimonial evidence showing a police officer's bias against homeless persons and character for dishonesty, and in imposing an overbroad condition of probation. James and his codefendant also request that this court independently review the sealed transcripts in defendants' Pitchess hearings, and recalculate appellants' conduct credits, retroactively applying recent amendments to Penal Code section 4019. We agree the terms of James's probation must be slightly modified. In other respects, we affirm.
Count 1 of an information charged James with one count of the sale of cocaine base, in violation of Health and Safety Code section 11352, subdivision (a). Count 2 of the information charged James's codefendant, Freddie Powell, with one count of possession of cocaine base, in violation of Health and Safety Code section 11350, subdivision (a) (count 2). The information also alleged that Powell had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
James and Powell each pleaded not guilty. The trial court granted appellants' motions for pretrial discovery, pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess ), as to Los Angeles Police Department (LAPD) Officer George Mejia, and Detectives Kitzmiller and Gamboa.
A jury found both defendants guilty as charged. Powell admitted the prior conviction allegation.
The trial court suspended imposition of sentence as to James, and placed him on formal probation for 36 months, subject to certain conditions. James received five days presentence custody credits.
Powell was sentenced to the low term of 16 months in state prison, and the trial court struck the prior, pursuant to Penal Code section 1385. Powell was given 252 days of presentence custody credits (168 actual plus 84 days conduct credit).
On May 29, 2009 at about 5:00 p.m., Officer Mejia, assigned to a LAPD narcotics surveillance team in the "Skid Row" area of Los Angeles, on San Julian Street between 6th and 7th streets, was stationed at an observation post by a window on the fourth floor of a building, using binoculars to look for drug sales.
Through the binoculars, Mejia saw Powell 80 to 100 feet away. Powell was walking along San Julian. He appeared to speak to two or three people as he passed by, and stopped when he met up with James. The two men spoke for less than a minute. Powell removed the hat he was wearing and handed it to James, who placed it on his own head. Powell then reached into his pants pocket, pulled out some bills and handed the money to James, who put it in his pocket. James, in turn, removed an object from the pocket of his sweatshirt and opened his palm to show it to Powell. He held the object out in his open palm for about five seconds. Through his binoculars, Mejia could see that the object was an off-white substance resembling cocaine base. It was about the size of a "Tic Tac" candy, or the tip of a pencil eraser. The object (which later analysis revealed to be cocaine base) was not encased in any packaging and weighed .03 net grams.
James handed the object to Powell. Powell walked about 10 feet down the street, pulled a glass pipe from his pocket, placed the off-white object in the pipe and continued walking. Mejia advised other officers participating in the surveillance to detain Powell and James.
Detectives Kitzmiller and Gamboa responded to Mejia's call and drove to the area in an unmarked car. They approached Powell and James, identifying themselves as police officers. From five or six feet away, Gamboa saw Powell toss a three-inch glass pipe from his left hand. The pipe shattered, sending shards of glass "everywhere," but the off-white substance remained intact and was retrieved. Afraid of being cut, Gamboa left the glass on the ground. Powell and James were detained. James had seven one-dollar bills in his possession. It was stipulated that Powell had five dollars in his possession at the time of his arrest.
James testified that in May 2009 he was homeless and staying at the New Image Shelter. On May 29 he was at 6th and San Julian Streets waiting with a group of about 50 people for a walk-in ticket for the shelter.
On appeal, James maintains the trial court (1) abused its discretion by excluding evidence that would allegedly have shown Mejia harbors a bias against homeless persons and has a character for dishonesty, and (2) imposed an overbroad condition of probation. Joined by Powell, James also requests that this court independently review the sealed transcripts in the Pitchess hearings and recalculate appellants' conduct credits, retroactively applying recent amendments to Penal Code section 4019.
Prior to trial, the prosecution moved successfully, pursuant to Evidence Code section 402, to exclude a DVD involving Mejia provided to the defense by a potential defense witness, Steve Richardson. The prosecutor argued the video, was "essentially a lot about skid row and LAPD," and purportedly depicts "Cal Trans workers . . . cleaning up skid row." The prosecutor maintained that, although the evidence was being offered to impeach Mejia, the prosecutor did not "believe (a) there's anything in it that impeaches Officer Mejia, and (b) because of the nature of this video in its entirety, it's interviews with homeless people screaming that LAPD is taking everything they have, it's highly inflammatory and serves no real relevant purpose."
The defense wished to offer the evidence both to show that Mejia harbors bias against homeless people and to impeach his testimony with false statements allegedly made in connection with prior arrests. If permitted to do so, Richardson would testify: (1) he worked for Los Angeles Community Action Network (LA CAN), a nonprofit organization assisting homeless people in the Skid Row area; (2) Mejia had been part of a group of officers who were "harassing homeless people;" (3) In August 2008, Mejia arrested Richardson at gunpoint when Richardson attempted to monitor and keep track of officers who were "violating the rights of the homeless in downtown";
With respect to the August 2008 arrest, the trial court asked whether Richardson was "going to say that Officer Mejia lied in connection with that arrest?"
James's counsel then described an incident that occurred two weeks after Richardson's August 2008 arrest in which he was brought into the station by another LAPD officer and was being booked for possession of marijuana, and Mejia falsely "signed that he was the arresting officer in the citation that he gave Mr. Richardson, although Officer Mejia was never there during this incident."
The court then asked the identity of the officer who actually did arrest Richardson and asked to see the citation. James was not able to satisfy either request, which led the court to question "how [the defense was] going to prove that Officer Mejia lied on the citation." James's counsel said the evidence would come only in the form of Richardson's testimony.
Powell's attorney also noted that this was not merely a situation where a complaint had been filed against Mejia, but one where a criminal action had been brought in which false statements were made against Richardson, and that he had a list of other individuals, some of whom had been convicted and were in prison, who also claimed Mejia lied in their cases. Thus, he asserted it was a question "for the jury to decide, even if there's a conviction of a client who's claiming that the officer lied. It's for the jury to decide whether that person is credible."
James's counsel persisted in her attempt to introduce portions of the video in which Mejia was present when officers were shown taking property from homeless people, putting it into a truck and moving it to another location to leave it out in the open, and purportedly planting evidence and lying about whether property police officers placed on a truck had been given to them by homeless persons. She argued that evidence was relevant to Mejia's credibility and reputation, which was relevant for purposes of impeachment. In short, the "claim is he's not making valid arrests, what he claimed to have seen in this case did not really happen . . . . [¶] . . . [¶] [W]hether it's crates or drugs, it's the same type of arrest the officer is making in both cases."
James's counsel also informed the court she only had a "little video snippet" in her possession that LA CAN had put together, was still waiting to receive the entire amount of raw footage contained in the video and did not know what the whole video would show.
The court observed that they were "now to the trial date," and whatever evidence the defense sought to introduce was something the prosecution was entitled to have received 30 days earlier. Nevertheless, the court said it was "happy to look at whatever somebody's got," but remained skeptical it would be relevant to the matters at issue here. The court reiterated, "[t]he issue in this case is whether these gentlemen engaged in a hand to hand transaction that involved a drug sale . . ., and if somebody has a specific offer of proof about prior occasions on which Mejia has lied under oath or lied in a police report, [it would] consider that. The fact that he's taking people's crates and all of that, it's very far afield. The probative value is very slight, and the undue consumption of time potential is huge." The court agreed to take a copy of the video home and view it, but stated its "tentative . . . is to exclude it."
The district attorney informed the court Mejia had just recently had an opportunity to review the video excerpts and had informed the district attorney that what he had seen in the video was "out of order" and "made to look like things happened in a certain way, but that's not the order, and he [thought] some of it may actually have been shot in different years." Mejia had also told the district attorney the material he and other officers were accused of taking and leaving out in the open had actually been taken to the appropriate governmental facility, and that he had neither dumped crates there in order to arrest people, nor arrested anyone for taking crates at that location.
Although it offered to do so, it is not clear whether the trial court ever viewed the DVD.
James's counsel raised the issue of examining Officer Mejia again during trial. The court clarified its ruling:
James contends the entire case against him hinges on the jury's determination as to whether his story—he did not sell any drugs to but merely bought a hat from Powell—or Mejia's—from a fourth-floor window, 80 to 100 feet away and 40 feet up, he saw James display a cocaine rock the size of small breath mint in his outstretched palm on a public street for five seconds—is more credible. By excluding evidence of Mejia's bias and dishonesty in other instances, James contends the trial court effectively prevented him from impeaching Mejia, thereby abusing its discretion and denying him his due process rights under federal and state law to confront adverse witnesses. (See Pointer v. Texas (1965) 380 U.S. 400, 403 [13 L.Ed.2d 923, 85 S.Ct. 1065]; People v. Anderson (1987) 43 Cal.3d 1104, 1119.) Depriving a defendant of "an essential means to test the credibility of his accusers" is a violation of the confrontation clause and "`calls into question the ultimate "`integrity of the fact-finding process'". . . .' (Chambers v. Mississippi (1973) 410 U.S. 284, 295 [35 L.Ed.2d 297, 309, 93 S.Ct. 1038] . . . .)" (People v. Anderson, supra, 43 Cal.3d at pp. 1119-1120.)
The denial of the right to confront witnesses may also constitute the denial of a defendant's right, under evidentiary rules, to show the existence of bias or motive to fabricate to undermine a witness's credibility, which is always in issue. (Evid. Code, § 780; People v. Allen (1978) 77 Cal.App.3d 924, 931, fn. 8.) Such evidence includes "[t]he existence or nonexistence of a bias, interest, or other motive" and a witness's "character for honesty or veracity or their opposites." (Evid. Code, § 780, subds. (e), (f).) To that end, James asserts he is free to impeach the officer's credibility with evidence that he harbors a bias against a particular group of persons, such as the homeless. (See e.g., Larry E. v. Superior Court (1987) 194 Cal.App.3d 25, 32-33 [permitting discovery of officer's personnel records evidencing racial bias]). A defendant is also free to introduce evidence challenging an officer's character for honesty, whether in the form of evidence of specific dishonest acts, opinion or reputation. (Evid. Code, §§ 1100, 1101, subd. (c); People v. Hustead (1999) 74 Cal.App.4th 410, 417.)
James contends his confrontation and due process rights were denied when the trial court effectively prevented him from impeaching Mejia, the prosecution's key witness, by excluding the proposed testimony of Richardson and the DVD. First, James claims the proferred evidence would show Mejia harbors a bias against homeless people because: he has a reputation in the community for "harassing" the homeless, had stolen property belonging to homeless people and lied about it, had tried to entrap homeless people into taking the private property of business owners, and had falsely arrested and framed at least one person whom he knew to be an advocate for the homeless and who had tried to monitor his conduct.
Second, James argues the evidence would show Mejia has a character for dishonesty because: he lied in connection with prior arrests involving homeless people and their advocates, arrested Richardson at gunpoint and without cause in order to prevent him from exposing Mejia's violations of homeless persons' rights then tried to justify the arrest by falsely stating Richardson had engaged in drug sales, falsely claimed to have been the arresting officer when Richardson was cited for possession of marijuana, and lied on the DVD after being caught taking property from homeless people.
Third, James argues the trial court's decision to exclude the proferred evidence constituted error for the independent reason that it was an abuse of discretion under state law. He argues that the trial court erroneously excluded the evidence on the ground it did not involve false statements or arrests by Mejia, "when it clearly did." Specifically, the evidence would have shown that, in addition to falsely identifying himself as the arresting officer in the marijuana incident involving Richardson, Mejia attempted to entrap homeless people into taking private property of others, falsely claimed that he had been given the property of homeless persons that he had actually taken, arrested Richardson at gunpoint for resisting arrest after Richardson tried to expose his violations of the rights of homeless people, and tried to justify the arrest by falsely claiming Richardson was selling drugs.
On this record, we find no abuse of discretion. When the issues were first addressed in advance of trial, the court requested to review the arrest report for Richardson's alleged false arrest by Mejia for drug dealing and the citation falsely signed by Mejia as the arresting officer, but James was unable to produce either one. The court observed that this was not "a trial about people's unhappiness with Officer Mejia on skid row," but a question of whether Mejia lied about the particular drug transaction at issue and it intended to try "the specific facts of the charges in this case." Thus, to the extent the defense was making "an offer of proof that Mr. Richardson [was] going to come in and testify to specific lies that Officer Mejia allegedly told in his case, whether it's in the police report or in testimony or whatever, that's fine," but "this [was] not a [42 U.S.C. section] 1983 case against the LAPD." So, "until and unless [the court received] a specific offer of proof that Mr. Richardson [was] going to say Mejia lied in some specific way, [it would] provisionally grant[] 402 motion to exclude him." The court later reiterated that it would consider admitting evidence Mejia had previously lied under oath or in a police report, but emphasized that evidence from the DVD that Mejia was "taking people's crates and all of that. It's very far afield. The probative value is very slight, and the undue consumption of time potential is huge."
During trial the court clarified its earlier ruling. It stated "the probative value of all this back and forth between activists for the homeless . . . and the LAPD . . . taking . . . people's things. All of that is beyond the scope of this trial." If Richardson was "going to testify about Officer Mejia having lied in [his] case then we'll talk about that. But, as far as cross-examination of Officer Mejia as to whether he took somebody's crate . . . and didn't return it, . . . the probative value is virtually nil," whereas "undue consumption of time is great."
We will not disturb a trial court's ruling based on Evidence Code section 352 unless the appellant shows "the trial court exercised its discretion `"in an arbitrary, capricious or patently absurd manner."'" (People v. Frye (1998) 18 Cal.4th 894, 948, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) James has not made that showing here. The trial court correctly concluded that the video footage and Richardson's testimony regarding the DVD would have little, if any, probative value. The timeline, interpretation and legality of incidents depicted in the video are disputed.
Moreover, to the extent this evidence was offered to demonstrate Mejia's bias against homeless people, it was appropriately excluded. The trial court's refusal to allow James to introduce the video or question Richardson or Mejia about that evidence did not violate James's constitutional right to confront adverse witnesses. There is no question that cross-examination is the keystone to the right to confrontation "and an essential safeguard of a fair trial." (People v. Brock (1985) 38 Cal.3d 180, 189.) "Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, `trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.' [Citation.]" (People v. Quartermain (1997) 16 Cal.4th 600, 623.) In short, "`the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679; accord People v. Carter (2005) 36 Cal.4th 1114, 1172.) The question here was whether Mejia did lie or would have lied and framed defendants or planted evidence. James's offer of proof fell short of a showing which would have justified admission of this evidence. Although Mejia's bias and reputation in the relevant community—which was never defined—could indeed bear on the issue of whether he saw what he wanted to see in the transaction between James and Powell, the offer of proof was insufficient and not reasonably specific. As proferred, the facts as to which Richardson proposed to testify regarding disputed events allegedly depicted in the video were too attenuated to demonstrate dishonesty or bias. Without a specific offer of proof as to the evidence James would present to demonstrate Mejia's dishonesty or bias, James failed to demonstrate the relevance of such time-consuming evidence which was properly excluded. The court acted within its discretion to exclude the evidence. (People v. Frye, supra, 18 Cal.4th at p. 948.)
Several times the trial court observed it would be entirely proper for Richardson to testify regarding specific false statements Mejia made in connection with his own allegedly false arrest and the alleged falsified marijuana citation which was never produced. Richardson's testimony on those points, if believed by the jury, would have assisted James's effort to undermine Mejia's credibility and reflect bias, but it was never offered.
James and Powell requested that we independently review the sealed transcripts of the in camera Pitchess proceedings to determine whether proper procedure was followed and adequate disclosure of personnel records for Mejia, Kitzmiller and Gamboa was made in view of the defense at trial.
We have done so and conclude the trial court properly exercised its discretion and ordered appropriate disclosure of information "`relevant to the subject matter involved in the pending litigation.'" (People v. Mooc (2001) 26 Cal.4th 1216, 1226, 1232; see also Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016.)
At sentencing, the trial court ordered that one condition of James's probation was a requirement that he "stay away from places where users, buyers, or sellers congregate." Because it contains no "knowledge" requirement, James maintains this condition is unconstitutionally vague and overbroad. We (and the Attorney General) agree.
Although James failed to object to the challenged probation condition below, it is a purely legal claim which properly may be raised for the first time on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 888.) A term of probation must be sufficiently precise so that a probationer knows what is required of him and the trial court can determine if the term has been violated. (Id. at p. 890.) A term lacks adequate precision if people of common intelligence must guess at its meaning or could differ in its application. (Ibid.)
The term, "stay away from places where users, buyers, or sellers congregate," resembles the term at issue in Sheena K., in which the probationer was required not to "`associate with anyone disapproved of by probation.'" (Sheena K., supra, 40 Cal.4th at p. 880.) The Supreme Court found the term unconstitutionally vague, and required imposition of an explicit knowledge requirement. (Id. at pp. 891-892.) The same result is in order here. The probationary term must be modified to clarify that James will violate his parole if he fails to "stay away from places where he knows users, buyers, or sellers congregate."
James and Powell each argue they are entitled to additional custody credit under Penal Code section 4019 (section 4019), as amended.
A defendant sentenced to state prison is entitled to credit against the imposed sentence for all days spent in presentence custody, and may also be entitled to conduct credits pursuant to section 4019. (Pen. Code, §§ 2900.5, subd. (a), 4019, subd. (a)(4).) When appellants were sentenced, section 4019 provided for one day of work time credit and one day of good behavior credit for each six-day period of custody. (Former Pen. Code, § 4019, subds. (b), (c).) If a defendant earned work time credit and conduct credits, six days were deemed to have been served for every four days the defendant spent in actual custody. (Former Pen. Code, § 4019, subd. (f).) Effective January 25, 2010, section 4019 was amended to provide one day of work time credit and one day of conduct credit for each four-day period of custody. (Pen. Code, § 4019, subds. (b)(1), (c)(1).)
James and Powell contend the amendment to section 4019 must be applied retroactively and they are entitled to additional credits. Penal Code section 1237.1, however, requires the filing of a motion in the trial court as a prerequisite to seeking appellate review of the award of presentence credits, without which we may not consider in what manner the amendment would have affected that award. (Pen. Code, § 1237.1 ["No appeal shall be taken . . . from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, . . . first makes a motion for correction of the record in the trial court"]; People v. Acosta (1996) 48 Cal.App.4th 411, 427-428.) Nothing in the record indicates James or Powell raised their claims regarding recalculation of presentence custody credits below. Accordingly, their arguments regarding the applicability of the amendment to section 4019 are not cognizable on this appeal. James and Powell are not precluded from seeking relief in the trial court. (Id. at p. 428, fn. 8.)
The matter is remanded to the trial court with instructions to modify the condition of James's parole to state that he will be in violation of his parole if he fails to "stay away from places where he knows users, buyers, or sellers congregate." In all other respects, the judgment is affirmed.
We concur:
MALLANO, P. J.
ROTHSCHILD, J.
