People v. Chavez CA2/6

Filed 10/30/13 P. v. Chavez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B244746 (Super. Ct. No. VA122239-01) Plaintiff and Respondent, (Los Angeles County)

v.

DANIEL ALBERTO CHAVEZ,

Defendant and Appellant.

Daniel Alberto Chavez appeals a judgment following his conviction for carrying a loaded handgun in a public place. (Pen. Code, § 12031, subd. (a)(1).)1 We conclude, among other things, that: 1) substantial evidence supports the finding that Chavez was in a public place when he carried a loaded handgun in a driveway of a residence, but 2) the trial court erred by not disclosing two citizen complaints about the arresting officers on Chavez's Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531), 3) a new in camera review is required for three other citizen complaints, and 4) the trial court erred by not reviewing an Internal Affairs file which was produced at the in camera hearing. We remand with instructions to produce discoverable information for a new Pitchess in camera review and a post-judgment hearing.

1 All statutory references are to the Penal Code. References to section 12031 are to the version in effect prior to January 1, 2012.

FACTS On the evening of October 27, 2011, Sheriff's Deputies Jesus Urrutia and Jason Lanska were in a patrol car in the City of Norwalk. As they drove near a residence on Arlee Avenue, they saw Chavez, Carlos Silva, and Monica Ruiz standing in the driveway of the home. From a distance of 36 to 38 feet, Urrutia saw "something" in Chavez's hand. Lanska shined a "spotlight" on Chavez who was holding a handgun in his right hand. Urrutia yelled, "[D]rop the gun, stop, drop the gun." Chavez appeared "surprised"; he turned, ran toward the residence, threw the gun on the roof and went into the house. Urrutia went to the front of the house and knocked on the door. Chavez came out and told Urrutia that he had been "in the house the whole time." Urrutia retrieved a .38 caliber handgun from the roof of the house and determined it was "loaded." It was "an unregistered firearm." Chavez was taken into custody. He waived his Miranda rights and wrote the following statement: "I found the gun at the liquor store dumpster area. I decided to hang onto it and I never shot off the gun or anything like that. I can't afford to be in jail because I need to watch over my sick grandma." In the defense case, Erica Miranda, a neighbor, testified that after the officers arrived, one of them "tackled" and handcuffed a man. It was not Chavez. Fifteen minutes later, they handcuffed her brother. Chavez's mother testified that she and Chavez were in the house when the deputies arrived. Chavez was not in the driveway. When Urrutia arrived, he arrested another man, and he then searched the bushes near her house. Chavez testified when the officers arrived he was not outside, not in the driveway, and he did not have a gun in his hand. He was in the house. He wrote the statement at the police station, but the words "are not true." The gun the police confiscated was not his. He wrote the statement because Urrutia threatened him. While he was in the patrol car with another suspect, Urrutia told them that "if no one takes the