P. v. Frausto 1/7/05 CA2/4

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B171848A

Case Date: 03/16/2005

Preview:Filed 1/7/05 P. v. Frausto CA2/4 Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

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

THE PEOPLE, Plaintiff and Respondent, v. ELIZABETH MORENO FRAUSTO, Defendant and Appellant.

B171848 (Los Angeles County Super. Ct. No. VA075613)

APPEAL from a judgment of the Superior Court of Los Angeles County, Dewey L. Falcone, Judge. Affirmed in part, reversed in part, and remanded. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Elizabeth Moreno Frausto appealed from a conviction for sale of a controlled substance, contending that the trial court erred in rejecting her request for an in camera review of the confidential personnel files of the four deputies involved in her arrest. We issued an opinion affirming the judgment, but then granted a petition for rehearing to consider whether the court committed error under Blakely v. Washington (2004) ___ U.S. ___ [124 S.Ct. 2531] and Apprendi v. New Jersey (2000) 530 U.S. 466 when it imposed the upper prison term after making factual findings at the sentencing hearing. We conclude that the court may have erroneously considered sentencing factors already used for purposes of sentence enhancement or which do not fall within the recidivism exception of Blakely. Consequently, remand is required for resentencing. FACTUAL AND PROCEDURAL BACKGROUND Appellant was charged by information with one count of possession for sale of a controlled substance in violation of Health & Safety Code section 11351. In connection with that charge, it was further alleged that appellant possessed for sale 14.25 grams or more of a substance containing heroin within the meaning of Penal Code section 1203.07 and Health and Safety Code section 11352.5, subdivision (1); that in 1975, 1981, and 1993, she had suffered three prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a); and that she had suffered one prior conviction in 1993 within the meaning of Penal Code section 667.5, subdivision (b), that a term was served as described in Penal Code section 667.5, and that she did not remain free of prison custody or offense during a period of five years subsequent to the conclusion of the term.

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Pitchess Motion Appellant was arrested on March 5, 2003, by Los Angeles County Deputy Sheriff Brian Bishop and his partner Deputy Poff. Deputy Mia Doeve and her partner Deputy Herrera were called to the scene to perform a search incident to arrest. The search led to appellant's arrest for possession of heroin. Appellant's counsel filed a motion for pretrial discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531,1 seeking materials "which relate, directly or indirectly, to accusations and/or evidence that [the four deputies who participated in her arrest] have engaged in acts of misconduct." Specifically, the motion sought materials that indicated the deputies engaged in dishonesty or illegal acts, such as "false arrest, fabrication of evidence or probable cause, filing or writing false police reports, perjury, planting evidence or using false police reports to cover up the use of excessive force, improper police tactics, or making false or misleading internal reports such as false overtime or false medical reports." The motion also sought "[a]ny other material which is exculpatory [of appellant] or which impeaches the credibility of any above named deputy." In support of the application, appellant attached copies of the two reports of her arrest. Deputy Bishop's report stated that appellant was arrested in front of her home, "a known drug house where heroin is being sold" and that "has ties to the Southside Whittier gang"; that appellant consented to the search by saying "go ahead and strip search me if you want"; and that appellant's daughter had been arrested for possession of heroin found hidden in her groin area. Deputy Doeve

Defendant in Pitchess was charged with committing battery on four deputy sheriffs. Defendant asserted that he acted in self-defense in response to the use of excessive force by the deputies. He sought records of internal investigations of citizen complaints alleging that the deputies had used excessive force on previous occasions. The Supreme Court concluded that he was entitled to such records.
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stated in her report that prior to the search which she and her partner Deputy Herrera conducted, Deputy Bishop informed her that appellant and other of appellant's family members were known to use heroin and that they commonly hid narcotics in the groin area. Appellant's counsel stated in her declaration: "[The four deputies] claim in their report, and in the probable cause declaration attached to their report, that while on routine patrol, they observed a vehicle in front of a home that is alleged to be known as a drug house where heroin is being sold from and which has ties to the Southside Whittier Gang. Deputies immediately recognized [appellant] who resides at the location with her family. [

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