1 Filed 5/26/15 P. v. Williams CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT (San Joaquin)

----

THE PEOPLE, Plaintiff and Respondent,

v. LOVELL DONNELL WILLIAMS, Defendant and Appellant. C075763 (Super. Ct. No. MF034009A)

In December 2011, defendant Lovell D onnell Williams parked his car in the driveway of Rod Serrato’s house, went to the front door, and rang the doorbell for about two minutes. Defendant then looked through a window into the house and jumped a side fence. Defendant returned to his vehicle, got some gloves and a screwdriver. Five minutes later, he walked out of the house th rough a sliding door carrying a turkey pan containing a plastic bag. He went back in the house and retrie ved two more bags. Serrato’s neighbor, Venil Animaiya, record ed defendant’s license plate number and called the police.2 Animaiya believed a person named Rod liv ed at the house. He had last seen
Serrato about a week earlie r. Tracy Police Officer Jame s Harries investigated the reported burglary. There were no signs of forced entry, the rear sliding door was unlocked and ajar, and the side sliding door wa s unlocked, but closed. The inside of the home appeared as though so meone was living there. One of the rooms contained marijuana plants and grow lights, there a ppeared to be hashish in the home, and a certificate on the wall authorizing the bearer to posses the contraba nd. Harries spoke
with Serrato. Serrato told O fficer Harries he lived at the home. Serrato reported several items had been removed from the home, includin g a television set, a bottle of tequila, and some marijuana. Serrato had not given anyone permission to enter the home.
PROCEDURAL HISTORY Defendant was charged with first degr ee burglary and six prior prison term
enhancements. After being held to answer at the pr eliminary examination, defendant filed a nonstatutory motion to dismiss the inform ation based on allege d perjury by Officer Harries during that hearing. Defendant file d the transcript of an interview by Tracy Police Officer Gustavo Cisneros with Ray Jo hnson, who owned a business that cleaned houses prior to foreclosure sa les. Defendant worked for Johnson’s company. Johnson said his company cleaned homes that are abandoned by the owners, usually in foreclosures. The company did not remove pr operty of people living in the home, but if the property appeared abandoned, his employees could en ter homes and take property. Defendant also filed a transcript of Office r Harries’s interview of Serrato. In the interview, Serrato said the house was vacant and no one had lived there for a while. He did go there occasionally to look at his cannabis plant in one of the rooms. But he could no longer afford the home so he was going to have to short se ll it. Serrato was not aware of anyone who was scheduled to come and clean the house. The People responded with a
declaration from Officer Harries which said he had had a second conversation with3 Serrato, the day before the pre liminary examination, at which time Serrato told Harries he had not received a notice to vacate the premis es, was negotiating with the bank, and slept
at the home two or three times a week. Defense counsel argued the People ha d failed to provid e defendant with exculpatory evidence wh en they did not provide the au diotapes of the Serrato and Johnson interviews until after the preliminary examination, and the information available
“would have created a very different preliminary hearing.” After hearing argument, the trial court de nied the motion. The trial court “added
the non-disclosed information to the evidence, . . . , and retest ed for probable cause. The
Court has looked at the materi ality of the non-disclosed info rmation and what effect it had on the determination of proba ble cause . . . . [¶] The statement by Mr. Serrato that
the house was vacant . . . that statement is outweighed for purposes of a finding of probable cause by the statement that he went to the residence two times per week to check on his cannabis plant, [and] the neig hbor Venil Animaiya having identified Mr. Serrato as the resident of the house in ques tion. And that’s from the preliminary hearing transcript. Mr. Serrato’s statem ent to Officer Harries that he resided in the house. And
that is from the declaration of Officer Harries . That there were items in the -- in the downstairs rooms of the residence, and that there was a room actively being used for growing marijuana, and that the back yard [ sic ] was still in a livable state, and that guns registered to Mr. Serrato were stored in th e house. [¶] Based on the testimony presented at the preliminary hearing, the evidence from the tapes not available to the defendant at the preliminary hearing, the C ourt has determined that the prosecution’s nondisclosure of the exculpatory information did not affect th e determination of probable cause and that
defendant is not entitled to a dism issal of the information.”4 Following the denial of the motion to dismiss, defendant filed a Pitchess 1 motion to obtain discovery of any complaint or di sciplinary action against Officers Harries and Cisneros, to impeach one or bo th at trial. The motion argue d the discovery could be used to locate witnesses who could testify that one or both of the deputies had a character “for fabricating charges and/or evidence, false arre st, excessive force, r acial motivation.” At the hearing, defense counsel argued that the audiotapes of the interviews contradicted Officer Harries’s preliminary hearing te stimony and both offi cer’s reports were misleading.
The trial court found defendant had not ma de a showing of good cause to justify reviewing the officers’ records. The trial court found the records were not relevant
because defendant had the audi otapes with which to impeac h the officers’ credibility. Therefore, the trial court denied the Pitchess motion without conduc ting an in camera review of the personnel records. Defendant pled no contest to first degr ee burglary. The enhancement allegations were dismissed on the People’s motion. In accordance with the sti pulated sentence, the
trial court sentenced defendant to a term of four years in state prison. The trial court awarded defendant 1,464 days of presentence custody credit. Accordingly, the trial court
released defendant based on time served an d placed him on parole. The trial court ordered defendant to pay a $ 280 restitution fund fine and a matching parole revocation fine, stayed pending successful completion of parole, a $40 court security fee, and a $30
conviction assessment fee. Th e trial court granted defendant’s request for a certificate of probable cause.

1 Pitchess v. Superior Court (1974) 11 Cal.3d 531.5 PEOPLE V. WENDE REVIEW We appointed counsel to represent defenda nt on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the re cord and determine wh ether there are any arguable issues on appeal. Defendant was ad vised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communica tion from defendant. We have undertaken
an examination of the en tire record pursuant to Wende , and we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION The judgment is affirmed.

ROBIE , Acting P. J.

We concur:

MAURO , J.

HOCH , J.