People v. Jordan

• Decision Date: 30 April 2003
• Docket Number: No. B152028.,No. B155863.,B152028.,B155863.
• Citation: 133 Cal.Rptr.2d 434,108 Cal.App.4th 349
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Paul JORDAN, Defendant and Appellant. In re Paul Jordan, on Habeas Corpus.

133 Cal.Rptr.2d 434

108 Cal.App.4th 349

The PEOPLE, Plaintiff and Respondent, v. Paul JORDAN, Defendant and Appellant In re Paul Jordan, on Habeas Corpus.

No. B152028.

No. B155863.

Court of Appeal, Second District, Division 3.

April 30, 2003.

Review Denied July 23, 2003.^*

Carol S. Boyk, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Ron A. Jakob and Xiomara Costello, Deputy Attorney General, for Plaintiff and Respondent.

KLEIN, P.J.

Paul Jordan appeals the judgment entered following conviction by jury of possession for sale of cocaine base. (Health & Saf.Code, § 11351.5.) The trial court found Jordan had one prior conviction within the meaning of the Three Strikes law and had served one prior prison term within the meaning of Penal Code section 667.5, subdivision (b).¹ The trial court sentenced Jordan to a term of 10 years in state prison.

We reject Jordan's claim the People have a constitutional obligation to disclose complaints about police officer misconduct where the only evidence of such misconduct is defense testimony at an unrelated criminal trial. We also reject various other claims raised by Jordan, order the abstract of judgment corrected in minor respects and remand the case with directions to strike or impose the prior prison term enhancement.

FACTUAL AND PROCEDURAL BACKGROUND

1. Prosecution's evidence.

On October 23, 2000, at approximately 7:00 p.m., Long Beach Police Detective Able Morales, accompanied by Detectives Burns and Gonzales, arrested Jordan in the stairwell of an apartment complex frequented by gang members and marked by drug sales. Morales found car keys and a plastic baggie where Jordan had been seated in the stairwell. The baggie contained six smaller bags of cocaine base with a net weight of 1.26 grams. At the scene, Jordan waived his rights per Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and indicated the car keys on the stairwell operated his Buick Regal, which was parked approximately half a mile away.

As Morales drove Jordan to the area where Jordan said the Regal was parked, Jordan pointed out the Regal, which was being driven by his girlfriend, Saphine Ross. Ross denied Jordan had driven the Regal that day and said Jordan drove a green Volvo. When Morales asked Jordan the whereabouts of the Volvo, Jordan tried to mislead Morales as to its location and indicated the Volvo was parked on Gaviota Avenue, which is some distance from the scene of the arrest. However, Morales found a green Volvo parked around the corner from the apartment complex and opened it with one of the keys recovered in the stairwell. In the Volvo, Morales found approximately seven grams of cocaine base that was similar in appearance to the cocaine base recovered in the stairwell.

2. Defense evidence.

The defense theory of the case was that the cocaine found in the stairwell belonged to persons other than Jordan. Numerous residents of the apartment complex testified many other individuals had been present in the area of the stairwell immediately prior to Jordan's arrest and some of these individuals were members of the Insane Crips and Rolling 20's Crips who had been selling drugs. All of these individuals fled when the detectives approached. One defense witness, Nathaniel Ford, admitted he and another individual named Cedric had been selling drugs at the apartment complex prior to Jordan's arrest.

Saphine Ross testified Jordan drove the Regal to the apartment complex and waited there with Ross's property, including the keys to the Volvo while Ross drove the Regal to her apartment to get a security device she needed to start the Volvo. Jordan did not drive the Volvo that day and the cocaine in the Volvo belonged to Ross.

3. Rebuttal evidence.

During the defense portion of the case, the trial court reconsidered a pre-trial ruling the People could not present evidence of Jordan's gang affiliation. The trial court ruled that, in order to rebut the defense evidence that gang members, not Jordan, possessed the cocaine found in the stairwell, the prosecutor could cross-examine Ford about gang members selling drugs at the apartment complex and could present rebuttal evidence that Jordan was a gang member. Pursuant to this ruling, Detective Morales testified that, at the time of booking in this case, Jordan told another police officer he was a member of the Insane Crips gang. Morales described the tattoos on Jordan's body including "OG" on his right forearm, "Insane Gangsta" on his chest, "Crip" on his left forearm.

Long Beach Police Detective Sean Hunt, an expert on the Insane Crips gang, testified Jordan told him, shortly before Jordan was booked in this case, that Jordan was "Big Wino" from Insane Crips.

At the prosecutor's request, and over defense counsel's objection, Jordan displayed the tattoos on his upper torso to the jury.

CONTENTIONS

In a petition for writ of habeas corpus, which this court previously ordered to be considered concurrently with this appeal, Jordan contends the People's failure to provide information that could have been used to impeach Detective Hunt's rebuttal testimony violated Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and requires reversal.

In the appeal, Jordan contends the trial court erroneously denied a motion for new trial, improperly admitted gang evidence and should not have instructed the jury on refusal to deliberate. Jordan further requests this court to conduct an independent review of the trial court's in camera ruling on his pre-trial motion to discover citizen complaints against the arresting officers. (People v. Mooc (2001) 26 Cal.4th 1216, 114 Cal.Rptr.2d 482, 36 P.3d 21.)

The People contend the judgment must be modified in various respects.

DISCUSSION

1. The People had no duty to disclose complaints of police misconduct made by defendants at other criminal trials.

a. Jordan's contention.

Jordan contends the prosecution had a constitutional duty to discover and disclose to the defense two citizen complaints against Detective Hunt that could have been used to impeach Hunt's rebuttal testimony that Jordan admitted gang membership shortly before Jordan was booked in this case. Both of these complaints consisted of defense testimony, given at other criminal trials, alleging that Hunt had fabricated evidence of possession of cocaine.

The first complaint is based on the testimony of the defendant in People v. Gill (1997) 60 Cal.App.4th 743, 70 Cal.Rptr.2d 369. In that case, at a jury trial, the defendant, Fletcher Gill, testified Hunt used excessive force during a detention and fabricated evidence of possession of narcotics to justify the use of force. (Id. at pp. 746, 750, 70 Cal.Rptr.2d 369.) Gill filed an affidavit in support of Jordan's petition for writ of habeas corpus in this case in which Gill avered that on another occasion, Gill witnessed Hunt use excessive force against a female arrestee. Gill filed a citizen complaint with respect to that incident but did not file a complaint with respect to his own case until after it had been reversed on appeal.

The second complaint against Detective Hunt is based on the testimony of Kevin Jackson, the defendant in People v. Jackson, (Super Ct. L.A. County), No. NA048477. Jackson testified in his own defense at a jury trial on June 21, 2001, approximately one month before the trial in this case, that Detective Hunt approached him on the street shortly after his release from prison, threatened Jackson by reason of his parole status and asked Jackson to identify gang members from a book of photographs. When Jackson refused, Hunt threatened to have Jackson imprisoned for life. Two months later, Hunt and another officer stopped Jackson. Hunt allegedly planted cocaine on Jackson and falsely accused Jackson of possession of cocaine resulting in Jackson's conviction.² Jackson testified at his trial he did not file a citizen complaint against Hunt.

Jordan claims knowledge of these complaints of misconduct must be imputed to the prosecution team, given that Gill is a published case and the People were a party to both cases.³ Jordan asserts the prosecution had a duty to disclose these complaints and, had they been disclosed, they would have undermined Hunt's credibility and showed that Hunt had a history of mistreating suspects and fabricating evidence in drug cases. At oral argument before this court, Jordan's counsel alternatively suggested the duty to disclose might be limited to cases originating in the Long Beach Judicial District, the Long Beach Police Department and the Long Beach Office of the District Attorney's Office.

b. Applicable legal principles.

Jordan's contention arises at the intersection of California's statutory scheme for reciprocal discovery in criminal cases, the prosecutor's constitutional duty to provide material evidence to the defense and the statutory scheme for discovery of citizen complaints in peace officer personnel files. We review the relevant principles in each of these areas before turning to Jordan's claim.

(1) General rules related to discovery in criminal cases.

California's criminal discovery statutes, which were enacted as part of Proposition 115 (Crime Victims Justice Reform Act), are found at section 1054 et seq. These provisions set forth an almost exclusive procedure for discovery in criminal cases. (In re Littlefield (1993) 5 Cal.4th 122, 129, 19 Cal.Rptr.2d 248, 851 P.2d 42; People v. Superior Court (Barrett) 80 Cal. App.4th 1305, 1311-1312, 96 Cal.Rptr.2d 264; People v. Hammond (1994) 22 Cal. App.4th 1611, 1619, 28 Cal.Rptr.2d 180.) Under this statutory scheme, the prosecutor must disclose: "(a) The names and addresses of persons the prosecutor intends to call as witnesses...