Filed 9/16/14 P. v. Pham CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B252892
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA081451)
v.
JIMMY DAT PHAM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Dorothy L. Shubin, Judge. Affirmed.
Christopher Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
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We review this case for the second time. In our first opinion, we conditionally
reversed defendant Jimmy Dat Pham’s conviction for possession for sale of cocaine base
with a gang enhancement (Health & Saf. Code, § 11351.5; Pen. Code, § 186.22,
subd. (b)(1)(A)), so that the trial court could conduct an in camera hearing on defendant’s
motion for Pitchess1 discovery. In his Pitchess motion, defendant urged that his
“admissions” to arresting Deputy Choong Lee were coerced, and that Deputy Lee made
false statements in his report to conceal his wrongful conduct. We concluded that
defendant had demonstrated good cause for discovery of “complaints of acts of coercive
conduct and dishonesty (including fabrication of charges, fabrication of evidence,
fabrication of reasonable suspicion and/or probable cause, illegal search and/or seizure,
false arrest, perjury, dishonesty, writing of false police reports, and planting of
evidence),” any disciplinary action taken related to those complaints, as well as any
exculpatory Brady2 materials contained in the personnel file of Deputy Lee. (People v.
Pham (Jul. 30, 2012, B233975) [nonpub. opn.].) We otherwise affirmed defendant’s
conviction. (Ibid.)
The following evidence was adduced at trial: On the evening of September 2,
2010, Deputy Lee was on patrol as part of a task force targeting Asian street gangs.
Deputy Lee approached defendant, who was not engaged in any criminal activity, but
was present in a gang hangout. Defendant told Deputy Lee that he was on probation and
that his name was “Jimmy.” Deputy Lee asked defendant if he was in possession of
anything illegal, and defendant replied that he was carrying rock cocaine in his pocket.
Deputy Lee detained and searched defendant, finding 21.9 grams of rock cocaine and
$132 in cash in his pockets. (People v. Pham, supra, B233975.)
In Deputy Lee’s patrol car, defendant waived his Miranda3 rights and told Deputy
Lee that he had been out of work for two years and that he was selling rock cocaine he
1 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
2 Brady v. Maryland (1963) 373 U.S. 83.
3 Miranda v. Arizona (1966) 384 U.S. 436.
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received “on credit” from his gang. Defendant explained that after selling drugs, he kept
a portion of the proceeds and gave the rest to the gang, which would use the money for
recruitment and to enhance the gang’s stature. Defendant also wrote and signed a
statement which said: “I was sitting at the bar when Deputy Lee asked me if I was on
probation. I said yes. I had rock cocaine in my pocket. The cocaine was mine. I haven’t
had a job for two years. I sell cocaine. The rock cocaine was less than an ounce.”
(People v. Pham, supra, B233975.)
Deputy Lee testified as a gang expert with experience dealing with Asian gangs.
He opined that narcotics sales are the primary moneymaking activity of Asian gangs, and
when posed with a hypothetical based on the facts of this case, opined that drug
possession benefits the gang by boosting its reputation, getting money for it, and
facilitating recruitment. (People v. Pham, supra, B233975.)
On remand, the trial court held an in camera hearing at which it reviewed the
personnel records of Deputy Lee and ordered disclosure of information regarding four
complaints by three citizens. After conducting an investigation, defendant moved for a
new trial based on information from these three complaining citizens. Defendant’s
motion for a new trial summarized interviews with the complaining citizens, but did not
include affidavits. According to the motion, Citizen 1 had made two complaints against
Deputy Lee. Deputy Lee had pulled him over and accused him of being in a stolen car.
Citizen 1’s family had to come to where he was being detained to verify that the car was
not stolen. Another responding deputy knew that Citizen 1 worked as a security guard
and was licensed to carry a gun. Deputy Lee asked if Citizen 1 had his gun, searched
Citizen 1’s car, and asked Citizen 1’s mother to bring the gun to where Citizen 1 was
being detained. She refused. Citizen 1 was detained for 4½ hours. Three months later,
Citizen 1 was driving with his children when he was pulled over by Deputy Lee, even
though he had done nothing wrong. Deputy Lee attempted to forcefully remove Citizen 1
from his car, and searched Citizen 1’s car, including his daughter’s backpack.
Citizen 2 was sitting in his car, waiting to pick up his children from school.
Deputy Lee told him to put his hands up, made him get out of his car and take off his
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boots, and searched him. Citizen 2 was released at the scene because he had no warrants
or contraband.
Citizen 3 received a “bogus” parking ticket because Citizen 3 was involved in a
dispute with Deputy Lee’s family. Citizen 3 received a letter of apology from Sheriff Lee
Baca.
After the prosecution filed its opposition, the court held a hearing on defendant’s
motion, at which no witnesses testified. The court found that defendant had not
demonstrated prejudice from the failure to disclose the information before trial. As a
result, the court reinstated the earlier judgment.
Defendant appealed and we appointed counsel to represent him. After reviewing
the record, counsel filed a brief raising no issues and asking us independently to review
the record pursuant to People v. Wende (1979) 25 Cal.3d 436. On June 23, 2014, we
advised defendant, who had been released from prison, that he had 30 days within which
to submit any issues he wished for us to consider. No supplement brief has been filed.
We have examined the entire record, consisting of two volumes of clerk’s
transcripts, and three volumes of reporter’s transcripts (two of which are sealed) and are
satisfied that defendant’s attorney has fully complied with his responsibilities and that no
arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441; People v. Kelly
(2006) 40 Cal.4th 106.)
DISPOSITION
The judgment is affirmed.
GRIMES, J.
We concur:
BIGELOW, P. J.
RUBIN, J.
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