The People v. Austin CA1/3

Filed 8/27/13 P. v. Austin CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A135317 v. MONTRELL EUGENE AUSTIN, (Solano County Super. Ct. No. VCR213774) Defendant and Appellant.

Defendant Montrell Eugene Austin appeals his conviction, following a jury trial, of carrying a loaded, unregistered firearm. Defendant contends there was insufficient evidence to support the conviction, that the court abused its discretion in summarily denying his Pitchess1 motion to review the personnel file of one of the two arresting officers, and asks that we conduct an independent review of the other officer’s personnel records to determine if the court’s order denying disclosure was proper. Defendant also contends the trial court abused its discretion in conditioning his probation on not consuming alcohol in a public place. We conclude the conviction was supported by substantial evidence and that the probation condition is appropriate. However, we must remand the matter to the trial court for further proceedings concerning the Pitchess motions.

1 Pitchess v. Superior Court (1974) 11 Cal.3d 531.

1

FACTUAL AND PROCEDURAL BACKGROUND There was testimony at trial that on July 16, 2011, Vallejo Police Department Officers Eric Jensen and Dustin Joseph were patrolling the Crest area of Vallejo. At approximately 2:30 a.m., Officer Jensen, driving eastbound, saw defendant walking in the same direction, look over his right shoulder at the patrol car, move his elbows and his hands to the front of his body, reach into his waistband area and toss a dark object that had “some girth to it.” The object landed approximately two feet from defendant. Officer Joseph observed much the same thing, testifying that the object was thrown with defendant’s left hand to his left side, about a foot to two feet off the sidewalk, into the side yard of the corner house at Cynthia and Amelia Streets. Joseph testified that he never lost sight of defendant from the time he first saw him until he made the throwing gesture. After defendant discarded the object, Jensen turned on the driver’s side spotlight and pulled up about 10 to15 feet behind defendant. Both officers exited the patrol car and ordered defendant to stop and place his hands on his head. Defendant complied. Joseph pat-searched defendant for weapons while Jensen walked back 30 feet to where defendant had tossed the object. About two feet from the sidewalk, Jensen found a fully loaded, operable .357 Smith & Wesson magnum revolver. Joseph testified that Jensen picked up the gun “[i]n the exact spot where [they] saw Mr. Austin drop the object.” Jensen was wearing gloves when he picked up the gun by its grip. He removed six live rounds from the gun. A latent print processing technician subsequently examined the gun but was unable to find “any suitable latent impressions.” The technician swabbed the textured surfaces of the gun for DNA but did not know the results of the DNA analysis. Defendant testified in his own defense that on the night in question he was walking with “a lot of stuff on [his] mind,” that he had been drinking from a bottle of gin which he threw down as the police approached, and that he was not carrying a gun. He denied that the gun Jensen found was his. Defendant was charged by information with carrying a loaded, unregistered firearm. (Pen. Code, §§ 12031, subd. (a)(1), 25850, subd. (a).) Prior to trial he filed two virtually identical Pitchess motions to discover the personnel files of Officers Joseph and