People v. Kuahuia CA2/8

Filed 6/16/14 P. v. Kuahuia CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B250636

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA094379) v.

BENJAMIN KUAHUIA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Gary J. Ferrari, Judge. Affirmed as modified.

Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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Defendant Benjamin Kuahuia pled no contest to possession of burglary tools (Pen. Code, § 466), and was convicted by jury of possessing a controlled substance for sale (Health & Saf. Code, § 11378). Defendant also admitted three prior prison terms. (Pen. Code, § 667.5, subd. (b).) He was sentenced to a total term of five years in county jail, under Penal Code section 1170, subdivision (h), consisting of the high term of three years for the violation of Health and Safety Code section 11378, and two years for two of the prison priors. Defendant filed a timely notice of appeal. We appointed appellate counsel to represent defendant. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were raised. Appointed counsel requested that this court conduct an independent review of the trial court’s in camera Pitchess1 hearing under People v. Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc). No supplemental brief was filed by defendant. Defendant made a pretrial Pitchess motion for discovery of the contents of the personnel file of Long Beach Police Officer Jason Lehman. Counsel’s declaration in support of the motion averred that “Officer Lehman states that defendant admitted to possessing the alleged drugs for the purpose of selling them. The defendant did not make the admissions attributed to him . . . . The report . . . is false.” The trial court granted the motion “as to truth and veracity only,” conducted an in camera hearing, and ordered several citizen complaints released. The following evidence was adduced at trial: On the afternoon of January 2, 2013, Officer Jason Lehman was conducting an investigation, and lawfully detained defendant. As Officer Lehman approached defendant, defendant told him, “I have to tell you I have some tweak on me.” “Tweak” is another name for methamphetamine. Officer Lehman handcuffed and searched defendant. He found a bag and two small bindles of methamphetamine in defendant’s jacket pocket. In the same pocket, Officer Lehman also found a zip-lock bag that contained more than 50 small bags. Officer Lehman advised