Opinion
F070830
12-18-2017
THE PEOPLE, Plaintiff and Respondent, v. TERRANCE DAVIS, Defendant and Appellant.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Sarah J. Jacobs, and Jennifer Oleska, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kings Super. Ct. No. 12CM7583)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Louis F. Bissig, and Steven D. Barnes, Judges. J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Sarah J. Jacobs, and Jennifer Oleska, Deputy Attorneys General, for Plaintiff and Respondent.
Judge DeSantos presided over the July 23, 2014, and August 19, 2014, motions for additional investigative funds, the March 13, 2013, Marsden motion, and the January 12, 2015, sentencing hearing; Judge Bissig presided over the February 7, 2013, and October 8, 2014, Marsden motions; and Judge Barnes presided over the September 15, 2014, Marsden motion.
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INTRODUCTION
Appellant/defendant Terrance Davis, an inmate at Corcoran State Prison, was charged and convicted of count I, battery by a prisoner on a nonconfined person, Correctional Officer Burnitzki (Pen. Code, § 4501.5); and count II, obstructing Officers Burnitzki and Arellano from performing their duties (§ 69). The charges were based on an incident where correctional officers conducted a random search of defendant's cell. Defendant was authorized to carry a state-issued cane because of disability issues. The officers reported that when Burnitzki attempted to remove defendant from his cell, defendant used the cane to strike him, refused to obey their orders, and physically resisted both officers. Defendant was sentenced to the second strike term of seven years four months.
All further statutory references are to the Penal Code unless otherwise indicated.
Prior to trial, defendant filed several motions pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to discharge appointed counsel. His repeated Marsden complaint was that counsel refused to file a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), for discovery of the officers' personnel records for evidence of prior complaints about excessive force and false reports. At the Marsden hearings, counsel stated that defendant failed to give him sufficient information to file a Pitchess motion aside from claiming the officers lied, and defendant needed to identify witnesses who could support a Pitchess motion. The court denied his two initial Marsden motions and counsel did not file a Pitchess motion.
After the denial of his initial pretrial Marsden motions, defendant successfully requested to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta). The court appointed his previous attorney as standby counsel, and he was present during the subsequent hearings. During the pretrial period, while he represented himself, defendant successfully moved for the appointment of an investigator, and then requested more investigative funds to interview inmates who purportedly had evidence to support both a Pitchess motion and his intended defense that the officers used excessive force against other inmates. The court denied the motion for more investigative funds.
Defendant also filed a motion while he represented himself to dismiss the charges based on the officers' alleged use of excessive force. In support of this motion, defendant filed a declaration under penalty of perjury and set forth his own detailed account of the incident that occurred in the cell. Defendant declared he complied with the officers' orders, Officer Burnitzki used excessive force against him when he entered the cell, and both officers beat him without reason. The motion to dismiss was denied. As we will explain in section II, however, this declaration would have been sufficient to support a Pitchess motion.
Thereafter, defendant withdrew his pro. per. status and requested reappointment of counsel; the court reappointed his previous attorney, who had been standby counsel while defendant represented himself. Defendant was represented by counsel through the rest of the proceedings. After counsel was reappointed, however, defendant again made pretrial Marsden motions and complained that his attorney would not file a Pitchess motion; counsel said defendant had not given sufficient reasons for the motion, and the Marsden motions were denied. Counsel was apparently unaware of the declaration that defendant filed when he represented himself.
The matter proceeded to trial, where defense counsel cross-examined the officers on the credibility of their prior statements about the assaultive incident and possible inconsistencies in their reports. Defendant was convicted as charged.
Appellate issues
Defendant's primary appellate contentions are based upon appointed counsel's failure to file a Pitchess motion for discovery of information regarding claims of excessive force and filing false reports that might be in the personnel records of the officers involved in this incident.
First, defendant argues appointed counsel was prejudicially ineffective for his repeated failure to file a Pitchess motion based on the record in this case. In section I, we will review the well-settled standards for filing a Pitchess motion. As we will explain in section II, defense counsel ably represented defendant during his trial; he extensively cross-examined the officers with their prior statements and reports about the assaultive incident, established some inconsistencies in their accounts, and sought to undermine their credibility.
However, we are compelled to find that defense counsel was ineffective for failing to file a Pitchess motion; and failing to recognize that defendant's declaration that he filed when he represented himself, while the same attorney acted as standby counsel, sufficiently set forth good cause to support a Pitchess motion. We conditionally reverse defendant's convictions and remand the matter for further proceedings, and for a new attorney to file an appropriate Pitchess motion.
As separate issues, defendant contends the court abused its discretion when it denied his numerous Marsden motions because of the conflict with his attorney about his failure to file a Pitchess motion; and that the court similarly abused its discretion when it denied the motion he filed for additional investigative funds while he represented himself. As we will explain, our decision to remand the matter for further proceedings addresses these two contentions.
Finally, we will address defendant's argument that the court improperly imposed consecutive sentences in this case.
FACTS
On April 3, 2012, defendant was an inmate at Corcoran State Prison. He was housed by himself in a cell in the Security Housing Unit (SHU). The prison had classified defendant as "DPM," which meant "disabled placement movement." Defendant carried a state-issued wooden cane.
Correctional Officer Rocky Burnitzki was familiar with defendant and had served him breakfast for the prior year. Burnitzki also knew about defendant's disability classification. Burnitzki had never encountered any problems or difficulties when dealing with defendant.
On that day, defendant was selected for a random cell search, which was a standard practice at the prison. Officer Burnitzki was the lead officer, and Officer David Arellano was the backup officer.
Random cell searches
Officer Burnitzki testified that his standard practice for a random cell search was to advise the inmate about an unclothed body search. While the cell door remained closed, the officer would unlock the cell door's food port and order the inmate to disrobe. The inmate would then pass each item of clothing through the unlocked food port for the officer to search. Next, the inmate would be instructed to stand next to the cell door's window so the officer could inspect his body. The clothes would be returned through the food port, and the inmate would be instructed to put on his clothes and stand with his back to the cell door, with his hands behind his back and into the food port area, while facing the opposite side of the cell. The officer would then place handcuffs on the inmate's wrists through the food port.
Officer Burnitzki testified that the procedure was slightly different if the inmate was classified as disabled. A disabled inmate would be restrained with a waist chain around his entire body that kept his wrists at his sides, instead of having his wrists cuffed behind his back. In order to do so, the disabled inmate would place one wrist in the food port, and the officer would place one handcuff on that wrist. The officer would then slide the chain through the food port while the inmate turned around so it went around his body, and the other wrist would be restrained at his side.
After the inmate was restrained, the control booth officer would open the cell door. The door was about two feet wide. Officer Burnitzki testified that both the officer and the inmate could not fit through the door while walking side-by-side, and they would have to turn to get out. Burnitzki testified prison policy was always for a "hands-on escort" for an inmate in the SHU, so that the lead officer always had physical control of the inmate for safety reasons. The officer would place his hands on the inmate's arms and have him back out of the cell, escort him to another secure area, and other officers would search the cell. The search of defendant's clothes, use of restraints, and opening the cell door
Officer Burnitzki testified that he approached defendant's cell, unlocked and opened the food port, and advised him about the random search. Defendant was not belligerent and complied with the orders to disrobe and place each item of clothing through the food port for the search.
Officer Burnitzki testified defendant also complied with the orders to stand next to the window for the unclothed body search. Burtnizki thought defendant "didn't care for that" based on defendant's "body language." However, defendant did not say anything or resist the orders. Burnitzki did not find or observe any contraband. Burnizki returned the clothes through the food port, ordered defendant to get dressed, and defendant complied.
Officer Burnitzki testified he placed the waist chain on defendant. He restrained defendant's wrist through the food port, directed defendant to turn around so the chain went around his waist, restrained his second wrist at his side, and secured the waist chain with a lock. Defendant complied with Burnitzki's orders and did not resist. Once restrained with the waist chain, defendant's arms were at his side but slightly in front of his body, and he could move his arms approximately four to six inches.
Officer Burnitzki testified that once restrained, defendant complied with his orders to turn around and faced away from the door. Defendant stood about one to two inches away from the door and faced the opposite side of the cell. Burnitzki closed and locked the food port, and asked the control booth officer to open the cell door. He did not tell defendant that he was going to open the door.
Officer Burnitzki's testimony about the assault
On direct examination, Officer Burnitzki testified that "as soon as the door got opened enough ... I instructed him to start backing out." Burnitzki placed his left hand on defendant's left arm and used "slight" pressure. When he did that, defendant "turned to his left and struck me in the left shoulder bicep area" with the curved handle portion of his state-issued wood cane.
Officer Burnitzki testified he did not know that defendant was carrying his cane when he opened the cell door. Burnitzki testified that once defendant hit him with the cane, he "instinctively reacted by placing my right hand on his back area" while he used his left hand to try and control defendant's left arm.
Officer Burnitzki testified he tried to "take [defendant] down to the floor to prevent any other aggressive behavior, attacks." Defendant did not stop struggling or apologize. Instead, defendant "began to turn and try to get away from my grasp going forward." Burnitzki used defendant's momentum as they both moved forward into the cell and landed on the bunk. Burnitzki was on top of defendant.
Officer Burnitzki testified he told defendant to stop resisting and get down, but defendant did not comply. Defendant "was trying to get his hands underneath him," which he was able to do even with the waist chain, and he tried to "lift himself up." Defendant slightly moved up, but Burnitzki used his body weight to keep him down.
Officer Burnitzki testified that Officer Arellano followed them into the cell and tried to control defendant's right arm. Defendant continued to struggle as Arellano tried to get control of him. Arellano administered pepper spray to defendant, and he finally stopped resisting.
Additional backup officers arrived and escorted defendant out of the cell. Officer Burnitzki testified that defendant never apologized for striking him during the incident.
Officer Burnitzki was instructed to report to the hospital for evaluation. Burnitzki testified that defendant hit him "[h]ard enough to leave a bruise," and he had a "reddened area" on his left arm, but conceded the redness was not apparent on a photograph taken at the prison hospital that day. There was no swelling, redness, blood, or visible bruise.
Cross-examination
On cross-examination, defense counsel extensively questioned Officer Burnitzki about whether he used excessive force as he tried to escort defendant out of the cell, if defendant could have lost his balance when Burnitzki grabbed him, and why Burnitzki failed to include certain details in his report about the incident.
In response to defense counsel's questions, Officer Burnitzki testified that he told defendant that he was going to back him out of the cell at the same time that he reached through the cell's doorway and grabbed his left arm. Burnitzki testified that his normal procedure was to grab the inmate and tell him to back out at the same time. Burnitzki conceded he did not include this detail in his report about the incident. He also conceded that at the preliminary hearing, he testified that he did not say anything to defendant before he grabbed his left arm.
Defense counsel next asked Officer Burnitzki if defendant was using his cane when Burnitzki grabbed defendant's arm. Burnitzki testified that when he initially approached the cell door and spoke to defendant, defendant walked up to the door, and he was holding the cane. Burnitzki directed defendant to put it down and he complied. Burnizki said he could not see the cane after defendant was dressed, but he was positive defendant was not using the cane when he returned the clothes through the food port.
Officer Burnitzki further testified he did not see the cane when he reached through the open cell door and grabbed defendant's left arm.
"Q. You're concerned about safety an[d] security, and you have no idea where the cane is; is that correct?
"A. Yeah, that's correct."
Officer Burnitzki testified that after defendant was dressed, he could not see "[f]rom my vantage point" if defendant had picked up the cane and only saw his back through the cell door's window. Burnitzki believed the cane was placed against the side of the door, but he did not know for sure. Burnitzki testified he did not see the cane while defendant was being placed in the waist chain restraints. Burnitzki testified he would have hoped that Officer Arellano, who was standing next to him, was watching defendant's activities and whether he picked up the cane.
Counsel asked Officer Burnitzki how defendant was holding the cane when it hit his arm. Burnitzki testified he was not exactly sure and believed defendant had "choked up on it." He also believed defendant was holding it with his right hand. He thought the cane had been placed to the right of the cell door, but testified he was not sure about the cane's exact location immediately before he grabbed defendant's left arm.
"Q. Again, did you see if [defendant] had [the cane] in his left hand, his right hand when you grabbed him from behind?
"A. No. At that point I didn't see.
"Q. So you're not sure where it was or whether the inmate was even utilizing it to maintain his balance, do you?
"A. No.
"Q. And DPM [classified] inmates, that means they have mobility issues; is that correct?
"A. Yeah, somewhat.
"Q. Trouble walking?
"A. Could be.
"Q. Trouble moving?
"A. Yeah various things.
"Q. Balance issues?
"A. Various things, yeah.
"Q. Okay. And for a year you'd seen [defendant], some days good, some days bad?
"A. Yeah.
"Q. So some days he got around pretty well; some days he didn't?
"A. Yes.
"Q. Okay. And at the time that you grabbed him from behind without saying anything to him, you don't know if he was utilizing the cane or just trying to maintain his balance on his own, do you?
"A. I don't believe so."
Officer Burnitzki testified he did not pull defendant out of the cell, but tried to guide him backward through the doorway. Burnitzki did not use a firm grasp "where he couldn't control" himself.
Officer Burnitzki conceded that at the preliminary hearing, he testified that he "grabbed" defendant after the cell door was opened, and before there was any resistance.
On further cross-examination, Officer Burnitzki testified that the cane "made contact with my arm ... [i]n a blunt force blow" but not in a downward glancing blow. He did not actually see defendant holding the cane until "it came flying toward my arm," after he had already grabbed defendant from behind. At that point, he saw the cane in defendant's right hand.
Counsel noted that Officer Burnitzki had previously testified that he never saw the cane in defendant's hand, but also said that it was in defendant's right hand. Burnitzki testified his earlier statement was a mistake. Burnitzki conceded defendant never touched him with his hands, but might have touched him with his elbow since his body was turned slightly to the left.
Officer Burnitzki testified that after he was hit with the cane, defendant started to thrash around to pull away from him. Burnitzki pushed defendant down into the cell. Defendant did not say anything or curse at him.
Counsel asked Officer Burnitzki if he wrote in his report that he saw the cane in defendant's hand. Burnitzki testified he wrote that defendant hit his left bicep with what appeared to be the handle portion of the cane, but he did not report that he saw the cane in defendant's hand.
Officer Burnitzki also conceded that he did not write in his report that after he was hit with the cane, he attempted to take defendant to the floor. Instead, Burnitzki wrote in the report that he used his momentum to push defendant into the cell and landed on top of him.
"Q. You didn't say anything about trying to take him to the floor?
"A. No, not in my report.
"Q. Not in your report. Just something you remember now? Is that something you just remember now?
"A. No, that's typical due to training and experience to get them to the floor. [¶] ... [¶]
"Q. It's typical in training and experience to write those things down in a report, right?
"A. Not if it didn't happen.
"Q. Because to succeed trying to take him to the ground, that's a use of force, right? When you force him toward the bed?
"A. Yeah."
Under further questioning, Officer Burnitzki testified he did not write in his report about trying to take defendant to the ground because "it didn't happen," and instead he used defendant's "momentum to take him forward."
"Q. Well, I just asked you three questions ago the first thing you tried to do was try to take the inmate to the ground, and is that correct? [¶] And you said yes, and then when this didn't work you forced him forward with your momentum into the cell; is that what you said?
"A. It was all one motion.
"Q. It was all one motion. So you didn't actually attempt to take him to the ground. You just wanted to take him down?
"A. Correct.
"Q And prior to that you hadn't told him a single thing, had you?
"A. Yeah. I had told him to get down."
Officer Burnitzki again conceded that he did not write in his report that he told defendant to get down after he was hit by the cane.
"Q. Everything that you ordered him to do he complied to that you wrote about in your report, except you didn't write anything about telling him to get down in your report, did you?
"A. No.
"Q. You didn't write about telling him to stop resisting in your report, did you?
"A. Uh-huh.
"Q. But all of those things were part of utilization of force against the inmate, correct?
"A. Correct."
Officer Burnitzki testified that it was the prison's policy to authorize the use of reasonable force if the inmate attacked an officer. While verbal persuasion was also part of the policy, there were no guidelines and the trained correctional officer had the discretion to decide on the appropriate reaction to subdue a resisting inmate.
"Q. ... And in this situation where you didn't see a cane in anyone's hand, that you saw something you believed to be a cane strike your bicep to a point where it didn't even make a mark on you, and you never saw in the inmate's hands, you believe that was sufficient for you to utilize force?
"A. Correct. I was struck with the cane."
Officer Burnitzki again conceded that defendant was a "restricted mobility" inmate who had been completely compliant up to that point.
Defense counsel asked whether he really told defendant to stop resisting and get down, after he was hit by the cane. Officer Burnitzki testified he gave this order, and agreed that he did not include this detail in his report.
Officer Burnitzki testified his physical hold on defendant's left arm was not enough to affect defendant's balance, but admitted he did not know the extent of defendant's injuries or his balance issues. Counsel asked Burnitzki if he usually escorted inmates while they were walking forward and they could see where they were going, and he said yes.
"Q. But in this particular situation that isn't what happened, correct?
"A. I wouldn't say that.
"Q. [Defendant] had no idea where you were going to move him to, did he?
"A. He knew he was going to be backed out of the cell."
Officer Burnitzki testified that he told defendant either to back out of the cell or that Burnitzki was going to back him out of the cell, but "I don't really recall exactly what I said." Burnitzki conceded he did not write about either possibility in his report.
On redirect examination, Officer Burnitzki testified that his report was "not even half a page," and it did not include everything that happened.
Officer Arellano's trial testimony
Officer Arellano testified he assisted Officer Burnitzki with the random search of defendant's cell. He did not know defendant and was not familiar with him.
Officer Arellano stood to Officer Burnitzki's right, outside the closed cell door, and he could see through the door's window. When Burnitzki initially asked defendant to approach the closed cell door, defendant was not holding his cane. Arellano watched as Burnitzki performed the unclothed body search of defendant by looking through the window of the closed cell door. After the search, Burnitzki placed the waist restraints on defendant through the open food port. Defendant was cooperative throughout the process.
Officer Arellano testified that he looked through the cell door's window and saw defendant place his cane to the right side of the cell door during the initial phase of the body search, and before the restraints were placed on him.
Officer Arellano testified that defendant grabbed his cane with his right hand after he was placed in restraints. Defendant was facing the cell door when he picked up his cane. Defendant then turned around so that his back was against the cell door, and Arellano could not see the cane anymore. Officer Burnitzki signaled to the control booth officer to open the cell door.
Officer Arellano testified defendant did not say or do anything immediately after the door was opened. Defendant turned to the left, to prepare to exit the cell, and Officer Burnitzki grabbed defendant's left arm. "As ... Burnitzki grabbed a hold of him, I seen [defendant] turn, turn to his left striking ... Burnitzki" in the left shoulder with the handle portion of the cane.
Officer Arellano testified defendant turned in "a fast motion; just a quick fast motion striking him in the shoulder." Arellano did not know how defendant had been holding the cane: "All I seen was the top portion come up and hit Officer Burnitzki." Burnitzki briefly blocked his view as he stood in the doorway.
Officer Arellano testified that after Officer Burnitzki was hit by the cane, defendant "tried to break ... Burnitzki's grasp by going forward. That's when ... Burnitzki went forward with him into the cell." As they moved forward, defendant "was moving around ... twisting back and forth trying to break his grasp as they were going in." Burnitzki and defendant landed on the bunk. Burnitzki was on top of defendant, and he was still using his left hand to hold defendant's left arm.
Officer Arellano went into the cell to help Officer Burnitzki. Defendant was "trying to get up from the bunk, pushing his weight up." Arellano told defendant to stop resisting, and grabbed defendant's right arm and held his head down to control his movements. Arellano could feel defendant using his arm to try to get up.
Officer Arellano testified that defendant continued to resist, so he administered pepper spray in defendant's face while still holding him with his left hand. After a few seconds, defendant stop resisting and the backup officers arrived.
Officer Arellano testified he wrote a report about the incident, and wrote that he told defendant to stop resisting before administering the pepper spray.
Cross-examination
Defense counsel asked Officer Arellano if he saw the cane before the cell door was opened:
"Q. You saw the top portion of the cane touch Officer Burnitzki?
"A. Yes.
"Q. But you did not see who was in control of it; did you?
"A. It was only obvious.
"Q. I'm asking if you saw who was in control of the cane; yes or no?
"A. No.
"Q. You didn't see anyone's hands on it, did you?
"A. No.
"Q. You simply saw the top edge of it touch Officer Burnitzki?
"A. Yes."
Defense evidence
Defendant did not testify.
Officer Brad Vikjord was called as a defense witness. Vikjord was with the investigative services unit of the Department of Corrections, and investigated criminal activity within the prison system. Vikjord investigated defendant's cell after the incident and saw blood in the same area as residual pepper spray.
PROCEDURAL HISTORY
As explained above, defendant contends that his appointed counsel was prejudicially ineffective for failing to file a Pitchess motion; the court abused its discretion when it denied his repeated Marsden motions because of counsel's failure to file a Pitchess motion; and the court abused its discretion when it denied defendant's motion, while he was representing himself, for additional investigation funds to interview inmates who would have provided evidence in support of a Pitchess motion and his defense that the officers used excessive force.
In order to address these interrelated issues, we must review the procedural history of the case.
Appointment of counsel
On or about October 22, 2012, the felony complaint was filed that charged defendant with count I, assault on Officer Burnitzki with a deadly weapon, a cane, and count II, preventing Burnitzki and Officer Arellano from performing their duties by force or violence, with one prior strike conviction and three prior prison term enhancements.
The court appointed attorney Robert Stover to represent defendant. First Marsden motion and preliminary hearing
On February 7, 2013, Judge Bissig was about to start the preliminary hearing when defendant requested a Marsden hearing about Mr. Stover.
Defendant's complaints about a Pitchess motion
At the Marsden hearing, defendant said he had a difference of opinion with Mr. Stover about filing a Pitchess motion before the preliminary hearing. Mr. Stover said that defendant wanted to know the prosecution's evidence against him, and he explained that the evidence would be disclosed at the preliminary hearing. Mr. Stover also advised defendant that his possible defenses of self-defense or excessive force were for the trial and not the preliminary hearing.
Mr. Stover addressed defendant's request for a Pitchess motion:
"[Mr. Stover:] As to a Pitchess motion, we had a discussion, I advised him that a Pitchess Motion simply would be an in camera review by the Court of the alleged officers' files and would simply provide names of complaining persons who may have some evidence in regards to that person on a particular issue. That it does not reveal nor does it provide directly the officers' disciplinary file, the outcome of any disciplinary proceeding, and in fact statutorily doesn't provide the outcome of any disciplinary proceeding in regards to the officer.
"If the only allegation that he's making is that the officer used excessive force and/or lied in his report, those are things that he could testify to at trial, or other witnesses could be called that might be identified who were there on that present day. But that would not be an issue of a Pitchess Motion directly.
"THE COURT: Alright. It sounds like maybe there's a concern that he might be waiving that by not seeking the Pitchess motion prior to the preliminary hearing. Have you discussed that with him?
"MR. STOVER: That may be an issue, your Honor, I have not discussed that with him, that a Pitchess Motion [can] be filed at any time based on the statements of the officer, if he then believes at the preliminary hearing that he's lying or he makes contrary statements to his actual report.
"Additionally, I've provided [defendant] with envelopes on a previous date to identify to me other persons that he may have information about that may have information pursuant to a Pitchess Motion in regards to these officers. And if those persons could be identified in some way that I would then retain an expert or investigator to investigate that matter for the potential of filing a Pitchess Motion. That a Pitchess Motion simply on his allegation that the officer lied isn't sufficient as to a Pitchess Motion, that's something he could testify to directly." (Italics added.)
As we will discuss in sections I and II, Mr. Stover's explanation about the requirements for a Pitchess motion was incomplete. A defendant may submit his own declaration to establish good cause and a plausible factual foundation for alleged officer misconduct to support a Pitchess motion. If defendant's own declaration states good cause, the defendant is not required to obtain declarations or affidavits from other witnesses to support a Pitchess motion. (Garcia v. Superior Court (2007) 42 Cal.4th 63, 71 (Garcia); Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1047, 1049-1051.)
The court advised defendant that it was "almost unheard of" to make a Pitchess motion before the preliminary hearing, and there was nothing inadequate or incompetent in Mr. Stover's decision not to make it. The court advised defendant that he was not waiving any future right to pursue a Pitchess motion after the preliminary hearing. The court denied the Marsden motion.
Preliminary hearing
At the preliminary hearing, Officer Burnitzki was the only witness and testified on direct examination that he tried to remove defendant from the cell, he reached for defendant's left arm, defendant hit his left shoulder and bicep with his cane, and that he attempted to gain control of defendant with Officer Arellano.
On cross-examination, Mr. Stover questioned Burnitzki about each detail of the incident, beginning with the unclothed body search and that defendant had not resisted any orders. The court held defendant to answer.
On February 21, 2013, the information was filed that charged defendant with count I, assault on a correctional officer, Officer Burnitzki, with a deadly weapon, a cane; and count II, preventing executive officers Burnitzki and Arellano from performing their duties by threats and violence, with one prior strike and three prior prison term enhancements. Second Marsden Motion
On March 13, 2013, Judge DeSantos convened a pretrial conference and defendant requested another Marsden hearing.
At the Marsden hearing, defendant raised several complaints, and again said he wanted to make a Pitchess motion and Mr. Stover refused. Mr. Stover said that prior to the preliminary hearing, defendant had requested a Pitchess motion, and "I provided him with envelopes to communicate with me information that he had besides his statement that the officer was lying." (Italics added.) Mr. Stover said that defendant had identified "several persons as potential witnesses, but he wasn't sure exactly what they were going to say."
Defendant also complained that he just learned Mr. Stover had been disciplined by the State Bar. Defendant submitted a document from the State Bar's website, that Mr. Stover had received a public reproval in 2004, and been placed on probation in 2006 and 2007. Mr. Stover was no longer subject to any disciplinary actions at the time he represented defendant.
Mr. Stover said that after the preliminary hearing, "I supplied to the court an investigator motion and had my investigator do some preliminary work in this matter. However, I have not received a final funding order back from the Court in regards to that for my investigator to complete his investigation."
"I've advised [defendant] that until I received information from my investigator and he had an opportunity to talk to the potential Pitchess Motion witnesses, that a Pitchess Motion would be not ripe for filing until that happened." (Italics added.)
The court said a Pitchess motion could not be filed before the preliminary hearing. The court continued.
"THE COURT: [T]he requirements for a Pitchess Motion are very specific. Did you discuss with him as to what allegations he was going to make and under penalty of perjury?
"MR. STOVER: I did, your Honor, I spoke with him directly. And that a Pitchess Motion, if it was only him saying that the officer was lying, that's not a basis for a Pitchess Motion. A Pitchess Motion is to get the names and information of others who may be similarly situated, of which he was unsure of anyone, until he advised me of the date that I had my investigator prepared to investigate in that matter as to whether he actually does have something that would be a basis for a Pitchess Motion. [¶] A Pitchess Motion is not simply a request. You can't simply request an officer's file because my client wants to see it. There have to be specific issues and he has to name specifically what the officer lied about in the report. Which he has not directly identified to me, although I provided him with envelopes." (Italics added.)
Defendant said that Mr. Stover was wrong. The court admonished defendant to be quiet and asked Mr. Stover to continue:
"MR. STOVER: [Defendant] identified one person by the last name only, which would require further investigation by my investigator to find out what exactly information he would have. Rather than simply saying
that person was in a similar situation, I would need a declaration from that person potentially in support of a Pitchess Motion.
"THE COURT: So a Pitchess Motion, your opinion at this point, is not ripe?
"MR. STOVER: Correct." (Italics added.)
Defendant said he gave the names of two people to Mr. Stover, and they had information about the two officers who "assaulted me, who allegedly claim that I assaulted staff...." Defendant identified two inmates by their names and housing locations, and he expected them to say that "we experienced the same type of treatment from the same officer" around the same time.
In contrast to the first Marsden hearing, Mr. Stover provided additional details about his conversation with defendant that explains why he had not filed the motion. Counsel stated that defendant had only told him that the officer lied about the incident. Counsel said he explained to defendant that he needed to be more specific about what happened in his cell. As we will explain in sections I and II, post, an affidavit or declaration in support of a Pitchess motion does not state good cause if it fails to "provide a 'specific factual scenario' establishing a 'plausible factual foundation' " for the alleged misconduct. (City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1146 (City of San Jose); People v. Sanderson (2010) 181 Cal.App.4th 1334, 1340-1341.) Mr. Stover reasonably believed defendant's bare assertion that the officer lied, without further details, would not have been sufficient to establish good cause. (People v. Samuels (2005) 36 Cal.4th 96, 109 (Samuels).)
The court denied the Marsden motion and continued with the pretrial hearing.
Faretta Motion
Immediately after the court denied the Marsden motion, defendant said he wanted to "assert my Faretta rights" and presented the court with a written motion to represent himself pursuant to Faretta.
The court evaluated defendant's Faretta motion, gave the appropriate advisements, and granted his motion to represent himself. The court relieved Mr. Stover but appointed him as standby counsel over defendant's objections.
DEFENDANT'S MOTIONS
Pretrial hearings about appointment of an investigator
On August 14, 2013, Judge Barnes convened a pretrial hearing. Defendant was present with Mr. Stover as standby counsel. Defendant asked for another continuance. The court discussed several matters with defendant, and asked if he had an investigator assisting him. Defendant said no.
Mr. Stover explained that the court had previously appointed an investigator when he represented defendant. Defendant replied that he did not know anything about a private investigator, an investigator had not visited him, and his prior motion for an investigator was denied. The court advised defendant that since he was acting as his own attorney, it was up to him to make contact with third parties and file the appropriate motions.
On October 16, 2013, Judge Bissig convened another pretrial hearing. Defendant asked for an in camera hearing "[b]ased upon a Pitchess Motion." The court replied that a written motion was required, denied his request for an in camera hearing, and continued the matter.
On November 18, 2013, Judge Bissig convened another pretrial conference. The People filed a first amended information; defendant rejected the People's plea offer of six years.
Defendant asked for another continuance because he wanted to file several motions and he did not have access to the prison law library. Defendant said one of the motions would be to dismiss the case because of the prosecution's failure to "disclose exculpatory evidence ... as far as information to the alleged victim's background history ... of disciplinary issues," referring to the correctional officer who claimed he was battered or assaulted. The court ordered defendant to prepare written motions.
Defendant's motion to dismiss
On March 3, 2014, defendant filed a written motion with the court to dismiss on several grounds, including the prosecution's alleged failure to disclose evidence of the officers' "criminal history" of misconduct and use of excessive force against inmates.
Defendant's supporting declaration
In support of the motion, defendant included a seven-page handwritten declaration about the incident in his cell. He signed the declaration under "penalty of perjury" that his statements were true.
In his declaration, defendant stated that on the morning of the incident, Officer Burnitzki picked up defendant's breakfast tray and purportedly made disrespectful and sexually harassing statements to him. Defendant said he asked for the officer's name and said he was going to file a complaint against him. Burnitzki became "agitated" and "threatened" that he would return to "harass" defendant for taking his name to file a complaint against him, and said he would search his cell "as a harassment measure of retaliation."
Defendant declared that Officer Burnitzki returned to his cell with Officer Arellano. They ordered defendant to remove his clothes for a body cavity search. Defendant said he complied and did not resist. Defendant said that Burnitzki placed the "belly chain" through the food port to put around his waist. Defendant said that as he did so, Burnitzki "used unlawful excessive force and 'yanked' the chain out of my hands deliberately to cause me injury" and provoke a response. Defendant declared that he did not respond to Burnitzki's action.
Defendant next declared that Officer Burnitzki placed the waist chain's handcuffs on him, and directed another officer to open the cell door. Defendant said he was holding his cane and waiting "for a direct order to back out" of his cell. He turned and saw Arellano gesture to Burnitzki. Defendant declared:
"[Burnitzki] without 'notice,' used unlawful excessive force and shoved me hard forward into my cell. I lost all balance while handcuffed and fell forward on my chest, face, head and left arm hitting the concrete floor hard and sustained serious bodily injuries. [¶] My cane fell to the floor...."
Defendant declared that Officer Burnitzki used additional force and "attacked me from behind and jumped on my back," and punched and kicked him while he was restrained. Officer Arellano also beat him, and he was sprayed with "a chemical agent." Defendant declared the two officers continued to beat him and choke him while he was on the ground.
Defendant concluded his declaration by stating that both officers violated his constitutional rights by using excessive force while he was restrained.
Officer Burnitzki's report
Also in support of the motion, defendant submitted the prison hospital's report that Officer Burnitzki did not have any pain or visible injuries.
In addition, defendant submitted a copy of Officer Burnitzki's official report about the incident. In the report, Burnitzki stated that he conducted a random cell search of defendant, and defendant complied with his orders. When the cell door was opened, he placed his left hand on defendant's left bicep to back him out of the cell. Defendant "immediately turned his upper body to his left, striking me in the left bicep and shoulder area with what appeared to be the handle of his cane. I instinctively placed my right hand on [defendant's] back with my left hand remaining on his left bicep to gain control. He began to resist by violently turning his upper body from side to side and pulling away from my grasp. Using [defendant's] momentum, I pu[s]hed [defendant] forward into the cell landing on the left bunk."
As we will explain in section II, defendant's declaration filed on March 3, 2014, is far more specific than his earlier statement to Mr. Stover that the officer lied about the incident. Defendant's declaration, "[v]iewed in conjunction with the police report[]" that he also filed with this motion, appears sufficient to state good cause, "establish a plausible factual foundation" for the alleged officer misconduct, and "articulate[s] a valid theory as to how the information sought might be admissible" at trial.' [Citation.]" (Garcia, supra, 42 Cal.4th at p. 71.)
Denial of motion to dismiss and appointment of investigator
On April 7, 2014, Judge DeSantos convened a pretrial hearing. Defendant represented himself; the minute order states that Mr. Stover was present as standby counsel.
The court denied defendant's motion to dismiss without prejudice, and did not make any comments about it.
In the course of the hearing, defendant complained that Mr. Stover had previously obtained an order for appointment of a private investigator but defendant never talked to this person. Defendant said he wanted Mr. McGaha appointed as his private investigator. The court said it would appoint Mr. McGaha as defendant's investigator with "at least $600 so he can go and talk to you at the prison and see what's going on."
On April 14, 2014, the court filed an order appointing Mr. McGaha as defendant's investigator, with compensation not to exceed $800, inclusive of costs and expenses.
Defendant demands records of "victim"
On April 25, 2014, Judge DeSantos convened another pretrial hearing. Defendant made another motion to dismiss, and claimed the prison staff falsified their reports about the incident and he did not assault anyone. The court denied the motion.
Defendant asked the court if he could set up a meeting with the investigator. The court arranged for defendant to meet with Mr. McGaha at the conclusion of the hearing, and defendant agreed.
The court asked the prosecutor if discovery had been provided to defendant. The prosecutor said yes. Defendant objected and said he wanted the victim's disciplinary history and any citizen complaints filed against him, again referring to a Pitchess motion. The court replied:
"Okay, well, that's different, that's discovery on your part. That's not within the scope of the prosecuting attorney that has to give that to you. If they have it in their investigation of the case, then it has to be disclosed if it goes to the prosecution. [¶] If you're asking for stuff, then that's a burden on you to bring discovery motions."
Defendant asked if the prosecution had "access" to Officer Burnitzki's disciplinary history. The prosecutor replied that defendant was "getting into a Pitchess which we would not be in the power to disclose," and the court agreed.
The court orders defendant's investigator to obtain his medical records
On May 9, 2014, Judge DeSantos convened another pretrial hearing. Defendant, who still represented himself, failed to appear. Mr. Stover, standby counsel, and Mr. McGaha, defendant's investigator, were present.
The court conducted a brief evidentiary hearing about defendant's physical condition and ability to appear. Mr. McGaha testified that he met defendant at the prison the prior week, and defendant fell down and needed medical attention. A correctional officer testified that defendant refused to leave his cell that morning for the hearing, and the prison did not have the appropriate order to extract him.
The court issued an order for defendant to be transported to hearings by any means necessary unless he was in the hospital.
The court asked Mr. Stover about obtaining defendant's medical records to determine his physical ability to appear. Mr. Stover suggested that Mr. McGaha could get them. The court directed Mr. McGaha to obtain defendant's records from the prison about his medical condition, and he agreed.
Defendant requests more investigation funds
On May 23, 2014, defendant appeared for a hearing and asked Judge DeSantos for a stay so he could investigate some matters. Defendant said his investigator had just been appointed, and he had an accident during their meeting and could not finish talking to him. Defendant said he submitted a witness list to the investigator, and he did not know how long it would take to contact them.
Defendant said he was also submitting an ex parte application "for additional investigator funds because currently the funds have run out." The court took the motion under submission. Defendant asked how long it would take to rule on the motion because the investigative funds had been "completely exhausted." The court said would address the matter, and the investigator knew that "in all likelihood this court will probably be paying him. [¶] When I put the stop on it then I'll put the stop on it and have the hearing and make a determination whether more funds are necessary, but the work that he's doing now he's had a good relationship with this court. He knows I generally don't leave him standing."
Mr. Stover, again present as standby counsel, advised the court that Mr. McGaha had obtained defendant's medical records from the prison as previously ordered. The court accepted and sealed the medical records.
Mr. Stover further stated that defendant had filed a complaint against him with the State Bar, even though he had not represented defendant since March 2013. Mr. Stover said the complaint would not affect his ability to serve as standby counsel. Defendant clarified the complaint addressed the period when Mr. Stover served as his attorney.
On June 13, 2014, Judge DeSantos convened a hearing on defendant's motion for further investigative funds. Mr. Stover stated Mr. McGaha had obtained additional medical records from the prison about defendant's condition and presented them to the court.
Defendant told the court that his investigator presented him with a declaration for funds. Defendant asked for a continuance because nine to 15 witnesses had to be interviewed. The court granted a three-week continuance for further investigation. The court directed defendant to provide a written motion explaining why additional time was needed.
Mr. Stover advised the court that Mr. McGaha had sufficient funds to conduct two interviews with inmates at Corcoran and "nothing beyond that. So absent any further funding order, that's where we'll be." The court stated that it would not grant additional funding "unless there's good reason to traipse all up and down the state looking for potential witnesses."
Defendant's motion for more investigative funds
On July 11, 2014, Judge DeSantos conducted the trial setting conference. Defendant was present with Mr. Stover as standby counsel. The court allowed defendant to present an ex parte written motion for more investigative funds to interview witnesses.
Defendant's supporting declaration
Defendant's written motion requested more investigative funds for Mr. McGaha to interview certain witnesses. It was supported by his declaration under penalty of perjury, where defendant identified 18 inmates by name with most of their CDC numbers, and one non-inmate witness, who was defendant's mental health provider in the prison. Defendant declared the charges against him were not based on an "isolated incident."
Defendant identified particular inmates with whom he previously had conversations, and asserted they had prior encounters with Officer Burnitzki where he allegedly used excessive force against them and falsified reports about the incidents. Defendant identified other inmates who had information about unidentified correctional officers who allegedly engaged in the same type of excessive force.
Defendant's motion requested an additional $800 for Mr. McGaha to complete the interview work.
The investigator's estimate of expenses
After the court received defendant's motion, Mr. Stover presented the court with Mr. McGaha's declaration about the expenses to contact and interview the inmates on defendant's witness list.
Mr. McGaha's declaration stated that the inmates on defendant's list were housed in Corcoran, Kern Valley, San Quentin, and Salinas Valley State Prisons. He estimated the total cost to travel, interview, and prepare reports would be over $1,000. The court took defendant's motion under submission.
The court's denial of defendant's motion for more investigation funds
On July 23, 2014, Judge DeSantos filed a written order that denied defendant's motion for more investigation funds without prejudice. The court stated that Mr. McGaha's declaration sought $1,050 plus mileage and other expenses to interview the inmate witnesses.
"Although Defendant previously received a substantial award of investigatory funds in this case, the current Motion fails to articulate how such funds were utilized. The Motion also fails to adequately explain how the subject areas about which Defendant seeks to interview the named individuals are relevant to his defense in this case; none of the descriptions seeming to indicate that any of the individuals actual witnessed the specific incident in question. A description of how each of the sought-after statements is relevant to Defendant's claim of innocence is essential to this court's ability to determine whether the investigative services requested are in fact 'reasonably necessary'. Further, it appears that Defendant seeks to interview multiple individuals about the same or similar topics. Although multiple witnesses may offer testimony on a single subject, the court is disinclined to commit public funds to the discovery of a significant number of repetitive witness statements." (Italics in original.)
REAPPOINTMENT OF COUNSEL
On August 19, 2014, Judge DeSantos conducted another pretrial hearing. Defendant still represented himself; Mr. Stover was present as standby counsel.
Defendant complained about the court's denial of his motion for more investigation fund. Defendant said he needed the investigator to interview and subpoena his witnesses because the officer allegedly assaulted these inmates. The court considered defendant's statements as a motion for reconsideration of the denial for more investigation funds, and denied it.
Request for appointment of counsel
Defendant next presented the court with a written motion to reappoint counsel. Defendant asked the court to be relieved of his pro. per. status because of "being denied my needed investigator." Defendant said he wanted to put on record that he did not receive adequate services from his investigators, and he never received any work product from them.
The court granted defendant's motion to be relieved of his self-representation status, and reappointed Mr. Stover to represent him. Defendant objected to Mr. Stover, and the court denied his objection. Third Marsden motion; Pitchess complaints
On September 15, 2014, Judge Barnes convened a pretrial hearing. Defendant was present with Mr. Stover, and defendant made a Marsden motion.
At the Marsden hearing, defendant said Mr. Stover was unhappy that he filed a complaint against him with the State Bar. Defendant claimed Mr. Stover threatened violence against him and said he was going to "throw" his case. Defendant also complained that his investigator never turned over any information while he represented himself, so he had no choice but to ask for an attorney again.
Mr. Stover said that when defendant represented himself, he had the services of a private investigator (Mr. McGaha) who had requested additional funds. Mr. Stover stated that defendant wanted the investigator to interview people who were not relevant to the case, and Mr. Stover decided not to move forward on the previous request.
Mr. Stover stated defendant filed a complaint against him with the State Bar, he had replied to the State Bar's inquiry, and the Bar found no basis and closed the matter. Mr. Stover denied threatening violence or throwing the case, and said he could continue to represent defendant.
Defendant replied that Mr. Stover had refused to file a Pitchess motion when he previously represented him, which is why he made the Faretta motion to represent himself. Defendant complained Mr. Stover was not presenting a defense.
The court said Mr. Stover was an experienced attorney who had represented prison inmates in similar cases. The court found Mr. Stover's statements more credible—that there were no threats or breakdowns in communications - and denied the Marsden motion. Fourth Marsden motion; additional Pitchess complaints
On October 8, 2014, Judge Bissig convened the trial confirmation hearing. Mr. Stover advised the court that defendant wanted him to interview additional witnesses, but defendant had not given him any new information "beyond what was provided in the declaration that was filed when he requested the additional investigator funds which the court ruled as being insufficient and not sufficient to make the witnesses relevant."
Defendant made another Marsden motion. At the hearing, defendant made various complaints against Mr. Stover, said his parole date was coming up on November 4, 2014, and he did not trust Mr. Stover with his case.
Defendant again said he made the Faretta motion to represent himself because Mr. Stover refused his request to make a Pitchess motion to get the "alleged victims' background ... because the ... alleged victim had [an] extensive history of attacking prisoners while handcuffs from behind doors and spraying them, assaults, and things of that nature. He refused to do that. He had admitted to it on record during the Marsden motion hearing ...."
Mr. Stover said the court had previously denied the same complaints at prior Marsden hearings, and he had no problem to continue representing defendant. Mr. Stover also discussed defendant's complaints at a previous hearing about his investigator:
"[Defendant] talked about the issues that his investigator had failed up until that date to provide him with any reports or records; however, the Court, again, addressing a Marsden motion said it was simply a rehash of some other issues that had occurred around that same timeframe.
"And again, I inquired of [defendant] this morning as to whether he had anything new beyond his written document that he had filed to support potentially the reappointment of an investigator or a continuance to interview those people because the Court had already made a ruling it wasn't going to give any funds without additional information and, again, he provided none of that to me this morning." (Italics added.)
Defendant replied that when he still represented himself, he filed a motion for more funds for an investigator to interview witnesses at various prisons, and that prior to that time, the investigator had not performed any work for him.
First day of trial
On October 14, 2014, Judge DeSantos convened defendant's jury trial. While the court reviewed pretrial motions, Mr. Stover advised the court that defendant was again complaining about his alleged failure to investigate the case. "The Court had provided to [defendant], when he was pro. per., a denial of additional investigator funds requiring that he disclose additional information as to the relevance of the witnesses that he wanted interviewed. He has not provided me with any further statement as to the relevance of those witnesses in regards to this matter so I have no basis to continue the matter for further investigation."
Defendant replied that he wanted Mr. Stover to interview the prison nurse, who could testify that the officer was not injured. Mr. Stover said that was not necessary because he had a photograph that showed no injury.
Thereafter, the jury trial began.
On October 16, 2014, the jury found defendant guilty of both counts. Defendant admitted the prior strike conviction, and the People dismissed the prior prison term enhancements.
Motion for new trial and sentencing
On January 12, 2015, Judge DeSantos convened the sentencing hearing. Mr. Stover advised the court that defendant wanted to make a motion for new trial, but he did not know of any basis for the motion. Defendant did not make a Marsden motion, but he addressed the court and said he wanted to make a motion for new trial based on ineffective assistance and conflict of interest. The court denied the motion, told defendant to raise the issues on appeal, and imposed sentence.
A Marsden hearing is not triggered by a defendant's expressed desire, without more, to make a new trial motion on the basis of ineffective assistance. (People v. Sanchez (2011) 53 Cal.4th 80, 90, fn. 3, disapproving People v. Mejia (2008) 159 Cal.App.4th 1083 and People v. Mendez (2008) 161 Cal.App.4th 1362.)
DISCUSSION
I. Pitchess Motions
As explained in the introduction, defendant raises several interrelated issues about his appointed counsel's failure to make a Pitchess motion, the court's denial of his numerous Marsden motions based on this same issue, and the court's denial of a motion he made while he represented himself, in which he requested additional investigative funds to obtain affidavits from inmates in support of a Pitchess motion.
In order to address these issues, we begin the well-settled standards to file a Pitchess motion.
A. The Motion and Discovery
"A criminal defendant, on a showing of good cause, is entitled to discovery of information in the confidential personnel records of a peace officer when that information is relevant to defend against a criminal charge. [Citations.]" (People v. Gaines (2009) 46 Cal.4th 172, 176 (Gaines).)
"To obtain Pitchess information, the defendant must file a written motion. [Citation.] It must describe 'the type of records or information sought' and include '[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.' [Citations.]" (Garcia, supra, 42 Cal.4th at p. 70, fn. omitted; Evid. Code, § 1043, subd. (b).)
"[T]he good cause requirement embodies a 'relatively low threshold' for discovery and the supporting declaration may include allegations based on 'information and belief.' [Citation.]" (People v. Samuels, supra, 36 Cal.4th at p. 109.) "The supporting affidavit 'must propose a defense or defenses to the pending charges.' [Citation.] To show the requested information is material, a defendant is required to 'establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events.' [Citation.] The information sought must be described with some specificity to ensure that the defendant's request is 'limited to instances of officer misconduct related to the misconduct asserted by the defendant.' [Citation.]" (Garcia, supra, 42 Cal.4th at p. 71.)
Defendant's counsel may file the supporting affidavit based on his or her "information and belief." (Brant v. Superior Court (2003) 108 Cal.App.4th 100, 105; People v. Mooc (2001) 26 Cal.4th 1216, 1226.) "Counsel's affidavit must ... describe a factual scenario that would support a defense claim of officer misconduct. [Citation.] 'That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.' [Citation.] 'In other cases, the trial court hearing a Pitchess motion will have before it defense counsel's affidavit, and in addition a police report, witness statements, or other pertinent documents. The court then determines whether defendant's averments, "[v]iewed in conjunction with the police reports" and any other documents, suffice to "establish a plausible factual foundation" for the alleged officer misconduct and to "articulate a valid theory as to how the information sought might be admissible" at trial.' [Citation.] Corroboration of or motivation for alleged officer misconduct is not required. [Citation.] Rather, 'a plausible scenario of officer misconduct is one that might or could have occurred.' [Citation.] A scenario is plausible when it asserts specific misconduct that is both internally consistent and supports the proposed defense. [Citation.] 'A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial.' [Citation.]" (Garcia, supra, 42 Cal.4th at p. 71.)
"A Pitchess motion need not ... provide a motive for the alleged officer misconduct." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1025 (Warrick).) The court's inquiry does not involve "an assessment or weighing of the persuasive value of the evidence ... presented [or] which should have been presented. [Citations.] Indeed, a defendant is entitled to discover relevant information under Pitchess even in the absence of any judicial determination that the potential defense is credible or persuasive. [Citation.]" (Gaines, supra, 46 Cal.4th at p. 182.)
"If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance. [Citations.] The trial court may not disclose complaints more than five years old, the 'conclusions of any officer' who investigates a citizen complaint of police misconduct, or facts 'so remote as to make [their] disclosure of little or no practical benefit.' [Citations.] Typically, the trial court discloses only the names, addresses, and telephone numbers of individuals who have witnessed, or have previously filed complaints about, similar misconduct by the officer. [Citation.] That practice 'imposes a further safeguard to protect officer privacy where the relevance of the information sought is minimal and the officer's privacy concerns are substantial.' [Citation.]" (Warrick, supra, 35 Cal.4th at p. 1019.)
B. Relevance to the Defense
"[A] showing of good cause requires a defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events." (Warrick, supra, 35 Cal.4th at pp. 1021-1022.)
"Traditionally, Pitchess motions seek information about past complaints by third parties of excessive force, violence, dishonesty, or the filing of false police reports contained in the officer's personnel file. [Citations.]" (Rezek v. Superior Court (2012) 206 Cal.App.4th 633, 640-641.)
An officer's use of excessive force is a defense to the crime of resisting an executive officer by use of force or violence (§ 69). If the defendant's response to the officer's use of excessive force was itself excessive, he would still be guilty of battery, but not of violating section 69. (People v. Brown (2016) 245 Cal.App.4th 140, 154; In re Manuel G. (1997) 16 Cal.4th 805, 815-816; People v. Delahoussaye (1989) 213 Cal.App.3d 1, 7; People v. Castain (1981) 122 Cal.App.3d 138, 145.) If, however, a jury determines the defendant actually and reasonably believed his response was necessary to defend himself, self-defense would supply a complete defense to charges of both resisting by force (§ 69) and battery on a nonconfined person (§ 4501.5). (See People v. Jefferson (2004) 119 Cal.App.4th 508, 518.)
Defendant was charged in this case with battery by a prisoner on a nonconfined person, Officer Burnitzki, in violation of section 4501.5; and obstructing Burnitzki and Officer Arrellano from performing their duties in violation of section 69. Based on defense counsel's cross-examination at the preliminary hearing and trial, defendant's trial defense was that he did not intentionally hit Burnitzki with his cane, Burnitzki used excessive force against him without cause, and his report about the incident was not accurate.
Based on the nature of the charges and his trial defense, a Pitchess motion for disclosure of information regarding complaints of excessive force and false reports, from the personnel files of one or both officers in this case, would have been relevant and "shown a logical connection between the charges and the proposed defense" provided defendant showed good cause. (Warrick, supra, 35 Cal.4th at p. 1027.)
C. Affidavits and Declarations
Evidence Code section 1043, subdivision (b)(3) states that the motion for discovery shall include "[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records."
Section 1043, subdivision (b)(3) "contains no requirement of a 'personal' affidavit on the part of the accused. [Citation.]" (People v. Memro (1985) 38 Cal.3d 658, 676, overruled on other grounds in Gaines, supra, 46 Cal.4th 172.) There is also no requirement that the affiant must "have personal knowledge of the matters stated in the declaration, which may be based merely on information and belief. [Citation.] Accordingly, a declaration by the defendant's lawyer is sufficient. [Citation.] The materiality of the requested information may be established by a reading of the police reports in conjunction with defense counsel's affidavit. [Citation.]" (Brant v. Superior Court, supra, 108 Cal.App.4th at p. 105.)
While a Pitchess motion may be based on an attorney's affidavit, there is no bar to a defendant filing an affidavit or declaration in support of the motion, and it may be sufficient to establish good cause without additional affidavits or declarations. (See, e.g., Uybungco v. Superior Court, supra, 163 Cal.App.4th at pp. 1047, 1049-1051; cf. People v. Collins (2004) 115 Cal.App.4th 137, 151 [defendant's affidavit made general allegations of misconduct and failed to establish good cause]; People v. Thompson (2006) 141 Cal.App.4th 1312, 1317 [same].)
This case is unique in that the record contains a sworn declaration from defendant, albeit filed in support of a motion to dismiss, that contained specific assertions about what happened in his cell. If defendant's declaration, considered together with Officer Burnitzki's report about the incident, established good cause for Pitchess discovery, then an affidavit from defense counsel, or additional declarations from other inmates who might have asserted that Burnitzki had used excessive force against them, would not have been necessary.
D. Sufficiency of Affidavits/Declarations
We now turn to a series of cases that have addressed the sufficiency of the affidavits and declarations to support a Pitchess motion.
1. Good Cause Shown
In Uybungco v. Superior Court, supra, 163 Cal.App.4th 1043, the defendant was charged with misdemeanor resisting and vandalism, arising from an incident where officers attempted to break up a disturbance at a bar; they reported that the defendant attempted to punch them and resisted arrest. The defendant filed a Pitchess motion for disclosure of evidence regarding excessive force, false arrest, and false reports. The defendant's motion was supported by his own sworn declaration that he did not resist or attack the officers, disputed each aspect of the officers' reports, and asserted that the officers attacked and beat him without cause. Uybungco held that the defendant's sworn declaration was sufficient to establish good cause. (Uybungco, supra, at pp. 1047-1051.)
In People v. Hustead (1999) 74 Cal.App.4th 410, 416-417 (Hustead), the defendant was charged with evading arrest while in a motor vehicle and misdemeanor resisting arrest. He moved for discovery under Pitchess, and claimed the police report contained material misstatements and the officer used excessive force against him. The district attorney dismissed the resisting charge, and the court denied the Pitchess motion as irrelevant to the remaining charge of evading arrest. (Hustead, at pp. 414-416.)
Hustead held that even though the resisting charge had been dismissed, the defendant's motion still showed good cause for discovery based on the defense counsel's affidavit and allegations about the officer's report:
"[Defense counsel] asserted in his declaration that the officer made material misstatements with respect to his observations, including fabricating [defendant's] alleged dangerous driving maneuvers. He also stated that [defendant] asserted that he did not drive in the manner described by the
report and that his driving route was different from that found in the report. In addition, he claimed that a material and substantial issue in the trial would be the character, habits, customs and credibility of the officer. These allegations were sufficient to establish a plausible factual foundation for an allegation that the officer made false accusations in his report. It demonstrated that [defendant's] defense would be that he did not drive in the manner suggested by the police report and therefore the charges against him were not justified." (Hustead, supra, 74 Cal.App.4th at pp. 416-417.)
In Warrick, the defendant was charged with possession of cocaine base for sale. Defense counsel's declaration denied that the defendant had " 'possess[ed] any narcotics for the purpose of sale on the date of his arrest' and denied that defendant had discarded any rocks of cocaine. Instead, the declaration stated, defendant was at the scene to buy cocaine and, fleeing at the sight of the officers because he feared arrest for an outstanding parole warrant, ran past the actual seller. Defense counsel postulated two explanations - either the officers did not know who had discarded the rocks of cocaine and they falsely accused defendant of having done so, or they knew who had discarded the cocaine but falsely accused defendant. Under either theory, defense counsel asserted, the officers falsely arrested defendant and made false statements in the police report to support his arrest." (Warrick, supra, 35 Cal.4th at pp. 1023-1024.)
Warrick held the factual scenario in counsel's affidavit was both specific and plausible: "His proposed defense to the charge of possessing cocaine base for sale was straightforward: he asserted he did not possess, and therefore could not have discarded, the 42 rocks of cocaine. By denying the factual assertions made in the police report - that he possessed and discarded the cocaine - defendant established 'a reasonable inference that the [reporting] officer may not have been truthful.' [Citation.]" (Warrick, supra, 35 Cal.4th at p. 1024; see also City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86; People v. Gill (1997) 60 Cal.App.4th 743, 750).)
2. Failure to Show Good Cause
In City of San Jose, supra, 67 Cal.App.4th 1135, the defendant was charged with receiving stolen property and possession of a firearm by a felon; the contraband was discovered after officers reported they obtained consent to search his residence. The defendant filed a Pitchess motion for discovery of the officers' records regarding complaints of illegal searches, improper handling of evidence, dishonesty or deceit, false arrest, fabrication of evidence, and false reports or testimony. The motion was supported by defense counsel's declaration that said the defendant disputed the allegations in the police report, the defendant would show at trial that he never consented to the entry, and there were material misrepresentations in the police report about the entry and search. The trial court ordered disclosure of certain information. (City of San Jose, at pp. 1139-1140.)
City of San Jose held the trial court abused its discretion and reversed the discovery order. The court held the defendant failed to show good cause for discovery because defense counsel's declaration "did not provide a 'specific factual scenario' establishing a 'plausible factual foundation' " for the alleged misconduct. (City of San Jose, supra, 67 Cal.App.4th at p. 1146.) Defense counsel's declaration did not specify whether the officers never obtained consent for the search, or obtained consent through coercion; which statements in the police report or the officers' testimony were material misrepresentations, or how the statements were incorrect; or what items were mishandled and how it purportedly happened. (Id. at pp. 1146-1147.)
In People v. Sanderson, supra, 181 Cal.App.4th 1334, the defendant was charged with making criminal threats to former friends during a cell phone conversation. The officers responded to their location and heard the defendant make the threats over the cell phone. The defendant filed a Pitchess motion for information from the officers' files about prior complaints of dishonesty and false reports. Defense counsel's supporting declaration stated that the defendant denied making the statements, and the officers' records of dishonesty and fabrication would be relevant to his defense. (People v. Sanderson, at pp. 1336-1337, 1338-1339.) Sanderson held the defendant failed to state good cause because he "simply denied making the statement attributed to him; he did not deny making the phone call or engaging in a telephonic conversation with [his former friends] at the time the police were present at the house." (Id. at pp. 1340-1341, fn. omitted.)
In In re Avena (1996) 12 Cal.4th 694 (Avena), there was an evidentiary hearing prior to trial about the voluntariness of the defendant's postarrest statements. The officers testified that his statements were voluntary; the defendant testified that he was beaten after he was arrested. The court held the defendant's statements were voluntary and rejected the defendant's claim that he was beaten. (Id. at pp. 729-730.) The defendant subsequently claimed in a habeas petition that his attorney was ineffective for failing to make a Pitchess motion against the officer who allegedly beat him after he was arrested. Avena rejected the defendant's habeas claim about the Pitchess motion because he did not present any evidence, other than his "bare assertion," to add to the evidence that was already before the court from the previous evidentiary hearing, or explain what his counsel would have discovered had he made a Pitchess motion. (Avena, at p. 730.)
With this legal background in mind, we turn to defendant's appellate contentions.
II. Ineffective Assistance
Defendant contends his convictions must be reversed and the matter remanded for a new trial because defense counsel was prejudicially ineffective for failing to file a Pitchess motion for discovery of Officer Burnitzki's personnel records for prior complaints of excessive force and filing false reports; and failing to investigate and interview other inmates to support both a Pitchess motion, and as potential trial witnesses to support the defense case that Burnitzki used excessive force without cause.
The People assert that defense counsel was not ineffective and made a valid tactical decision because defendant repeatedly failed to provide sufficient information to support a Pitchess motion, and there is no evidence that a Pitchess motion would have aided his defense.
A. Ineffective Assistance and Tactics
"To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
" 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' [Citations.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' [Citation.]" (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
"Defendant's burden is difficult to carry on direct appeal. We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission. [Citations.]" (People v. Montoya (2007) 149 Cal.App.4th 1139, 1148.)
B. Failure to File a Pitchess Motion
We begin by finding that Mr. Stover was a diligent advocate for defendant at trial. He used cross-examination to set forth the defense theory that defendant complied with the officers orders, Officer Burnitzki may have used inappropriate force when he grabbed defendant's left shoulder, and defendant may have inadvertently hit Burnitzki with the cane. He extensively cross-examined Burnitzki about the incident and brought out inconsistencies between his report and his direct examination testimony. Counsel obtained Burnitzki's admission that while he was concerned about officer safety, he did not know where defendant's cane was immediately before he opened the cell door. Counsel also obtained Officer Arellano's concession that he did not see the cane in defendant's hand before the cell door was opened.
While counsel ably questioned the witnesses at trial, he repeatedly declined defendant's numerous pretrial demands to file a Pitchess motion. At the first and second Marsden hearings, Mr. Stover stated that a Pitchess motion was not ripe because defendant only claimed that the officers were lying. Mr. Stover said that he told defendant that in order to make a Pitchess motion, defendant had to specifically explain "what the officer lied about in the report. Which he has not directly identified to me ...." Mr. Stover further explained that since defendant had only claimed the officers lied, he asked defendant to identify other people who might have information to support a Pitchess motion, and he would have an investigator talk to them to determine if their evidence would support a Pitchess motion.
Mr. Stover's concerns at that stage were appropriate. A Pitchess motion will not be granted unless the supporting declaration or affidavit "provide a 'specific factual scenario' establishing a 'plausible factual foundation' " for the alleged misconduct. (City of San Jose, supra, 67 Cal.App.4th at p. 1146.) In City of San Jose, Sanderson, and Avena, the defendants' bare assertions that the arresting officers lied about the incidents in those cases were insufficient to establish good cause and a plausible factual foundation. (City of San Jose, supra, 67 Cal.App.4th at p. 1146; People v. Sanderson, supra, 181 Cal.App.4th at pp. 1340-1341; Avena, supra, 12 Cal.4th at p. 730.) The record implies that Mr. Stover reasonably believed defendant's bare assertion that the officer lied, without further details, would not have been sufficient to establish good cause, even under " 'relatively low threshold' for discovery" under a Pitchess motion. (People v. Samuels, supra, 36 Cal.4th at p. 109.)
However, Mr. Stover made additional statements at the first and second Marsden hearings that were more problematic. At the first Marsden hearing, counsel said:
"If the only allegation that he's making is that the officer used excessive force and/or lied in his report, those are things that he could testify to at trial, or other witnesses could be called that might be identified who were there on that present day. But that would not be an issue of a Pitchess Motion directly." (Italics added.)
Mr. Stover's explanation was incomplete. While Sanderson and Avena held that a defendant's bare assertion that the officer lied would not establish good cause without additional specificity, an allegation that the officer fabricated evidence or filed a false report is the type of issue that is relevant for a Pitchess motion that "seek[s] information about past complaints by third parties of excessive force, violence, dishonesty, or the filing of false police reports contained in the officer's personnel file. [Citations.]" (Rezek v. Superior Court, supra, 206 Cal.App.4th at pp. 640-641.) In order to obtain discovery, however, defendant must still show good cause. (Garcia, supra, 42 Cal.4th at p. 70.)
After the court denied the second Marsden motion, it granted defendant's motion to represent himself pursuant to Faretta, and appointed Mr. Stover as standby counsel. During that period, defendant successfully obtained appointment of an investigator with the apparent goal of interviewing inmates who would support a Pitchess motion. Defendant filed a motion for additional investigative funds, supported by his declaration that identified certain inmates who should be interviewed because Officer Burnitzki had also used excessive force against them. Defendant's efforts while he represented himself were consistent with Mr. Stover's comments at the initial Marsden hearings that defendant's assertions the officer lied were insufficient to support a Pitchess motion, and he needed to obtain affidavits from inmates about the officers' alleged use of excessive force.
In the midst of his attempts to have the investigator interview the inmates, defendant filed a motion on March 3, 2014, while he represented himself, to dismiss the charges based on the officers' alleged use of excessive force. In support of that motion, defendant filed a declaration under penalty of perjury that was far more specific about what happened in his cell that day, and went beyond the bare assertion that the officers lied about the assaultive incident. While defendant relied on this declaration to file a motion to dismiss, he was apparently unaware that his own declaration could be sufficient to establish good cause and that he would not need affidavits from other inmates to support a Pitchess motion.
The court denied defendant's motion to dismiss. It also properly denied his motion for additional investigative funds because he failed to explain how the inmates identified in his motion would offer relevant evidence to his case. After the court denied his motion for additional investigative funds, defendant requested reappointment of counsel, and the court reappointed Mr. Stover.
Once Mr. Stover was reappointed, defendant made his third and fourth Marsden motions and again complained that he refused to file a Pitchess motion. In response, Mr. Stover said that defendant had not given him sufficient information to support a Pitchess motion beyond that contained in his motion for additional investigative funds. He did not mention anything about defendant's declaration in his motion to dismiss filed on March 3, 2014.
When the court appoints an attorney as "standby counsel," the attorney "takes no active role in the defense, but attends the proceedings so as to be familiar with the case in the event that the defendant gives up or loses his or her right to self-representation." (People v. Moore (2011) 51 Cal.4th 1104, 1119, fn. 7; People v. Harrison (2013) 215 Cal.App.4th 647, 656; People v. Williams (2013) 58 Cal.4th 197, 255.) Mr. Stover had been appointed by the court to be standby counsel during the entirety of the period where defendant represented himself, and appeared at every hearing. Mr. Stover was obviously aware of defendant's motion and declaration for additional investigative funds, filed when defendant represented himself and Mr. Stover was standby counsel, since he referenced that motion at the third and fourth Marsden hearings as the reason why he would not file a Pitchess motion.
However, Mr. Stover was apparently unaware of another motion filed at that time - defendant's March 3, 2014, motion to dismiss supported by his declaration, filed under penalty of perjury, that set forth specific facts about the incident in his cell, and contained far more than a general claim that the officer lied about the incident. As we have explained, that declaration would have likely established good cause to support a Pitchess motion.
In addition, when Mr. Stover said at the third and fourth Marsden hearings that defendant had not provided him with additional information to support a Pitchess motion, defendant failed to advise counsel or the court that he had already prepared a declaration that offered specific details about the incident in his cell.
Defendant's complaints about counsel's failure to file a Pitchess motion implicates an attorney's tactical decisions. "In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions. [Citations.]" (People v. Weaver, supra, 26 Cal.4th at p. 926.)
In this case, however, counsel gave specific reasons to explain why he would not file the Pitchess motion in response to defendant's numerous complaints at the Marsden hearings - that defendant only claimed that the officer lied without giving more details and, after counsel was reappointed, that defendant failed to provide additional information about the incident beyond the statements in his motion and declaration for additional investigative funds. Defendant did not realize that his March 3, 2014, declaration would have supported a Pitchess motion, Mr. Stover apparently did not realize the declaration existed even though it was filed while he was standby counsel, and defendant did not tell him about it at the subsequent Marsden hearings.
As explained above, a declaration or affidavit in support of a Pitchess motion must state good cause, but the court is not required to assess or weigh "the persuasive value of the evidence ... presented [or] which should have been presented. [Citations.] Indeed, a defendant is entitled to discover relevant information under Pitchess even in the absence of any judicial determination that the potential defense is credible or persuasive. [Citation.]" (Gaines, supra, 46 Cal.4th at p. 182.) Defendant's pretrial declaration may have contained questionable allegations, but those allegations were plausible and appeared to state good cause under the " 'relatively relaxed standards' " required for Pitchess based on the nature, circumstances, and location where the incident occurred. (Warrick, supra, 35 Cal.4th at p. 1016.)
We are not finding that counsel was ineffective during the period he served as standby counsel. (Cf. Brookner v. Superior Court (1998) 64 Cal.App.4th 1390, 1396-1397; People v. Michaels (2002) 28 Cal.4th 486, 525-526; People v. Hamilton (1989) 48 Cal.3d 1142, 1164-1165, fn. 14.) When counsel reassumed representation of defendant, he was apparently aware of defendant's motion for additional investigative funds, and the court's denial of that motion, but unaware of defendant's declaration, filed during that same period, that could have supported a Pitchess motion.
Given the entirety of the record, and the unique circumstance of the existence of defendant's March 3, 2014, declaration, we are compelled to find that defense counsel was ineffective for failing to file a Pitchess motion prior to trial. The existence of defendant's March 3, 2014, declaration demonstrates that defendant, aided by counsel, could have filed his own declaration under penalty of perjury, supported by the officer's report, that would have set forth a specific factual scenario establishing a plausible factual foundation, and would have been relevant to the charges of battery on Officer Burnitzki, and obstructing Burnitzki and Officer Arellano, and his defense that the officers used excessive force. (See, e.g., Uybungco v. Superior Court, supra, 163 Cal.App.4th at pp. 1050-1051.) Such a motion would have been consistent with Mr. Stover's trial strategy to show that the officers made inconsistent statements about what happened in defendant's cell.
C. Remand
Defendant asserts that his convictions must be reversed and the matter remanded for a new trial because counsel was prejudicially ineffective for failing to make a Pitchess motion. "[P]rejudice must be affirmatively proved; the record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 333.) The defendant must prove prejudice "as a 'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel. [Citation]" (People v. Williams (1988) 44 Cal.3d 883, 937; People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
While counsel was ineffective for failing to make a Pitchess motion, we cannot determine whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. As we have explained, the entirety of the record shows that counsel ably represented defendant at trial. The only aspect of ineffective assistance involved counsel's failure to file a Pitchess motion. If the motion had been filed and the court found good cause, the court could have conducted the in camera review but determined there was no discoverable information. Another possibility is that the court could have ordered disclosure of certain information to the defense, but that information may not have resulted in evidence that could have been admitted at trial.
" 'Section 1260 evinces a "legislative concern with unnecessary retrials where something less drastic will do." [Citation.]' " (Gaines, supra, 46 Cal.4th at p. 180.) We thus order the conditional reversal of defendant's convictions and remand the matter for further appropriate proceedings. The court shall appoint a new attorney to represent defendant, who shall file a Pitchess motion supported by the appropriate declaration, bearing in mind that defendant's March 3, 2014, declaration most likely stated good cause. If the court determines that defendant has stated good cause it shall conduct the appropriate in camera review. If the court orders disclosure of any information, it shall give defendant a reasonable opportunity to investigate the information to develop admissible evidence and, if possible, file a motion for new trial based on that evidence. (Gaines, supra, 46 Cal.4th at p. 180.)
If defendant makes a motion for new trial, it must be supported by any newly discovered and admissible evidence that shows there is a reasonable probability that a different result would have occurred if the Pitchess information had been disclosed prior to trial. (See, e.g., Hustead, supra, 74 Cal.App.4th at pp. 418-423; People v. Johnson (2004) 118 Cal.App.4th 292, 304-305; Gaines, supra, 46 Cal.4th at p. 176; People v. Gill, supra, 60 Cal.App.4th at pp. 750-751.) In ruling on the new trial motion, the trial court may consider the credibility as well as the materiality of the evidence in determining whether introduction of the evidence in a new trial would render a different result reasonably probable. (People v. Delgado (1993) 5 Cal.4th 312, 329.)
Defendant's convictions shall be reinstated if defendant does not file a Pitchess motion, the court finds the motion does not state good cause, or the court conducts the in camera review and finds there is no discoverable information. Defendant's convictions shall also be reinstated if the court orders discovery of Pitchess information, but that information does not lead to any admissible evidence or the court denies a motion for new trial.
D. Failure to Interview Inmates as Possible Witnesses
Defendant raises a separate claim of ineffective assistance based on Mr. Stover's failure to pursue defendant's strategy while he represented himself, to interview certain inmates as potential witnesses for the trial. This claim lacks merit.
We have found that counsel was ineffective for failing to file a Pitchess motion, and that defendant's March 3, 2014, declaration would have been sufficient to establish good cause to support a Pitchess motion. Counsel's failure to pursue defendant's motions to interview the inmates to obtain supporting affidavits is thus rendered moot.
In addition, there were no apparent eyewitnesses to the incident in defendant's cell aside from the two officers. There is nothing in the record to indicate that any of these inmates could have offered evidence in support of defendant's trial theory that the officers used excessive force against him. III. The Court's Denial of the Third and Fourth Marsden Motions
Defendant raises the related issue that the court abused its discretion when it denied his third and fourth Marsden motions that he made after the court reappointed Mr. Stover to represent him, on September 15 and October 8, 2014. Defendant asserts that he was embroiled in an irreconcilable conflict with Mr. Stover over his refusal to file a Pitchess motion and investigate the case, defendant had filed a complaint against Mr. Stover with the State Bar, and Mr. Stover allegedly threatened him with violence and declared he would intentionally "throw" the case. Defendant further argues the court improperly relied on its own knowledge of Mr. Stover instead of addressing defendant's conflict with him.
The People assert the Marsden motions were properly denied because defendant failed to give his attorney sufficient evidence to support a Pitchess motion, and defendant's other Marsden complaints were meritless and lacked credibility.
A. Marsden
When a defendant seeks substitution of appointed counsel pursuant to Marsden, "the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result." (People v. Smith (2003) 30 Cal.4th 581, 604.)
A lack of trust in appointed counsel, the failure to get along with counsel, or the fact that there are heated exchanges between client and attorney does not require a substitution of counsel. (People v. Jones (2003) 29 Cal.4th 1229, 1246; People v. Smith (1993) 6 Cal.4th 684, 696-697; People v. Bills (1995) 38 Cal.App.4th 953, 961.)
The allegation that counsel rarely visited defendant also does not justify substitution of counsel. (People v. Myles (2012) 53 Cal.4th 1181, 1208.) "[T]he number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence." (People v. Silva (1988) 45 Cal.3d 604, 622.)
A defendant may not force the substitution of counsel by his own conduct that manufactures a conflict. (People v. Smith, supra, 6 Cal.4th at pp. 696-697.) " 'Trial judges must be wary of defendants who employ complaints about counsel as dilatory tactics or for some other invidious motive.' [Citations.]" (People v. Hardy (1992) 2 Cal.4th 86, 138.) To the extent there may be a credibility question between defendant and counsel at the Marsden hearing, the court is entitled to accept counsel's explanation. (People v. Smith, supra, 6 Cal.4th at p. 696.)
The court's denial of a Marsden motion is reviewed for an abuse of discretion. (People v. Streeter (2012) 54 Cal.4th 205, 230.) "Denial is not an abuse of discretion 'unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.' [Citation.]" (People v. Taylor (2010) 48 Cal.4th 574, 599.) A defendant is entitled to substitute his appointed counsel " 'if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.' [Citation.]" (Ibid.)
The erroneous denial of a Marsden motion is evaluated pursuant to Chapman v. California (1967) 386 U.S. 18 (Chapman). Under that standard, we must determine whether the denial was harmless beyond a reasonable doubt. (People v. Loya (2016) 1 Cal.App.5th 932, 944-945; People v. Knight (2015) 239 Cal.App.4th 1, 9.) In addition, the erroneous denial of a motion to substitute counsel may implicate the defendant's Sixth Amendment right to counsel. (People v. Smith, supra, 30 Cal.4th at pp. 606-607; People v. Abilez (2007) 41 Cal.4th 472, 490-491.)
B. Defendant's Allegations About his Relationship with Mr. Stover
We first review defendant's complaints that were not related to the Pitchess motion. At the third Marsden hearing, defendant said he filed a complaint against Mr. Stover with the State Bar, Mr. Stover was unhappy about the complaint, he said he was going to "throw" his case, and he threatened physical violence against him. Mr. Stover replied that he had replied to the State Bar's inquiry, and the Bar found no basis for the complaint and closed the matter. Mr. Stover denied that he threatened violence or to throw the case.
Given the record on these matters, the court did not abuse its discretion when it found Mr. Stover's statements were more credible than defendant's allegations. In addition, defendant could not rely on filing a complaint with the State Bar to create a conflict with Mr. Stover.
C. Defendant's Pitchess Complaints
As for the Pitchess issues, defendant complained at the third Marsden hearing that Mr. Stover refused to file a Pitchess motion or investigate the case. Mr. Stover replied that defendant wanted him to interview people who were not relevant to the case. Judge Barnes advised defendant that Mr. Stover was an experienced attorney and denied the Marsden motion.
At the fourth Marsden hearing, defendant again complained that Mr. Stover failed to file a Pitchess motion to get the "alleged victims' background" and their history of excessive force. Mr. Stover said the court had previously denied defendant's same complaints at prior Marsden hearings, and defendant had failed to provide him with any more information besides his declaration in support of his motion for additional investigative funds. Defendant replied that he tried to obtain more funds for his investigator to interview witnesses for a Pitchess motion but could not obtain additional funds. Judge Bissig denied the Marsden motion and advised defendant that it was defendant's problem if "[he] screwed it up" with regard to obtaining additional investigative funds.
Based on these exchanges, defendant argues the court abused its discretion when it denied his third and fourth Marsden motions because of his conflict with Mr. Stover about the Pitchess motion, and further argues the denial of the Marsden motions violated his Sixth Amendment right to counsel.
We have already addressed the majority of these issues in section II, and found that counsel was ineffective for failing to file a Pitchess motion and the matter must be remanded for further proceedings.
As for the denial of the Marsden motions, we note that defendant's pretrial conferences were conducted by different judges. The third and fourth Marsden hearings were heard by Judge Barnes and Judge Bissig, respectively. Judge Barnes had presided over one prior hearing in defendant's case, on August 14, 2013, that did not involve any of defendant's Marsden or Pitchess complaints; he was thus unaware of the verbal exchanges at the prior hearings between the court, defendant, and Mr. Stover about a Pitchess motion. Judge Bissig had presided over some of defendant's earlier hearings where he complained about counsel's failure to file a Pitchess motion, and Mr. Stover said defendant had just claimed the officer lied about the incident; these hearings occurred before defendant filed the March 3, 2014, declaration that set forth a detailed account of the incident.
As we have explained, it appears that Mr. Stover was unaware of defendant's March 3, 2014, declaration that would have supported a Pitchess motion. Defendant did not advise Mr. Stover about the declaration or that he could provide details about the incident beyond his initial accusation that the officer lied in his report.
We need not resolve the Marsden issues related to defendant's Pitchess complaints. Even if the court should have granted defendant's third or fourth Marsden motions, the error would be evaluated under the Chapman standard. We have already concluded that counsel was ineffective for failing to file a Pitchess motion, and will conditionally reverse defendant's convictions and remand the matter for further appropriate proceedings on the question of whether that failure was prejudicial. (See, e.g., People v. Lopez (2008) 168 Cal.App.4th 801, 815.)
IV. The Court's Denial of Defendant's Motion for Investigative Funds
Defendant next contends that while he represented himself, the court abused its discretion when it denied his motion for additional investigative funds to interview a list of inmates. Defendant notes that at the first Marsden hearing, Mr. Stover said that he needed statements from witnesses to support a Pitchess motion. Defendant asserts that he filed his motion for additional investigative funds because he needed to interview inmates, who could file affidavits in support of a Pitchess motion for Officer Burnitzki's personnel records for evidence of complaints of excessive force and false reports. Defendant further asserts that he also wanted to interview inmates and have them testify at his trial that the officers had a history of using excessive force and falsifying reports.
Defendant also argues that the court improperly denied his motion because he failed to explain how he used the initial allocation of funds. Defendant asserts that the record shows that the court ordered the investigator to perform certain activities that used the majority of the previously allocated funds.
The People assert that defendant's motion failed to explain how the inmates were relevant to his trial defense.
As we will explain, even if the court erroneously denied defendant's motion, the question has been rendered moot since the matter will be remanded for further proceedings regarding a Pitchess motion.
A. Ancillary Services
A defendant who represents himself has the right to " 'all means of presenting a defense,' " including the right to an appointed investigator. (People v. Blair (2005) 36 Cal.4th 686, 733, reversed on other grounds in People v. Black (2014) 58 Cal.4th 912, 919-920; Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319.) The "crucial question" is whether a self-represented defendant has had "reasonable access to the ancillary services that were reasonably necessary for his defense." (People v. Blair, supra, 36 Cal.4th at p. 734.) "The defendant has the burden of demonstrating the need for the requested services. [Citation.] The trial court should view a motion for assistance with considerable liberality, but it should also order the requested services only upon a showing they are reasonably necessary. [Citation.] On appeal, a trial court's order on a motion for ancillary services is reviewed for abuse of discretion. [Citations.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1085, overruled on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) "Error must be affirmatively shown. [Citation.]" (People v. Beardslee (1991) 53 Cal.3d 68, 100.)
B. Analysis
We need not address defendant's contention that the court erroneously denied his motion for additional investigative funds, that he filed while representing himself. Defendant's primary goal was for his investigator to interview inmates in support of a Pitchess motion. We are remanding the matter for further appropriate proceedings on that point, thus rendering as moot any other remedy.
V. Imposition of Consecutive Sentence
Defendant's final issue is that the court abused its discretion when it imposed consecutive sentences in this case. Defendant argues both convictions arose from a single objection and occurred close in time.
A. Background
At the sentencing hearing, the court stated that it intended to impose consecutive terms for count I, battery by a prisoner on Officer Burnitzki (§ 4501.5); and count II, obstructing Burnitzki and Officer Arrellano from performing their duties (§ 69). Mr. Stover argued that that section 654 should apply because the entire incident arose from contemporaneous acts in a continuous course of conduct, it was not an aggravated situation, Burnitzki did not suffer any injuries, and defendant was simply trying to stabilize his balance. Mr. Stover further argued that defendant's cane could not be considered as a weapon since he was not charged with assault with a deadly weapon. Defendant's criminal history primarily involved nonviolent offenses with the exception of his prior strike for robbery.
The prosecutor replied that consecutive sentences were appropriate because there were two victims alleged as to count II, the jury found defendant resisted both officers after he hit Officer Burnitzki with the cane, defendant engaged in an unprovoked attack, and defendant was armed even if the cane was not considered a deadly weapon.
The court found consecutive sentences were appropriate because there were two specific acts, based on defendant's act of hitting Officer Burnitzki with the cane and then resisting both officers.
The court sentenced defendant to the second strike term of six years for count I; with a consecutive term of 16 months (one-third the doubled midterm) for count II; for an aggregate term of seven years four months.
B. Section 654
In determining whether section 654's prohibition against multiple punishment applies, "[a] course of conduct that constitutes an indivisible transaction violating more than a single statute cannot be subjected to multiple punishment. [Citation.] 'If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.] If, on the other hand, 'the [defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.] Section 654 turns on the objective in violating both provisions, not the Legislature's purpose in enacting them. [Citation.]" (People v. Martin (2005) 133 Cal.App.4th 776, 781.)
"[A]s a general rule, even though a defendant entertains but a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence committed against a different victim. [Citations.] ' "[W]hether a crime constitutes an act of violence that qualifies for the multiple-victim exception to section 654 depends upon whether the crime ... is defined to proscribe an act of violence against the person." ' [Citation.]" (People v. Martin, supra, 133 Cal.App.4th at pp. 781-782.)
"Whether multiple convictions are part of an indivisible transaction is primarily a question of fact. [Citation.] We review such a finding under the substantial evidence test [citation]; we consider the evidence in the light most favorable to respondent and presume the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Martin, supra, 133 Cal.App.4th at p. 781.)
C. Analysis
While the two offenses in this case occurred close in time, there were two separate acts of violence in this case. First, defendant was convicted of battery Officer Burnitzki by striking him with the cane. Defendant was separately convicted of obstructing Burnitzki and Officer Arrellano from performing their duties in violation of section 69. The multiple victim exception is applicable in these circumstances. (See, e.g., People v. Martin, supra, 133 Cal.App.4th at pp. 782-783.)
DISPOSITION
Defendant's convictions in counts I and II are conditionally reversed and the matter remanded to the trial court to appoint new counsel who shall file a Pitchess motion for discovery, as explained in this opinion. If the court finds good cause, conducts an in camera hearing, and orders discovery of any information, it shall allow defendant a reasonable opportunity to investigate the disclosed information and file a motion for new trial.
If defendant decides not to file a Pitchess motion, or the court finds that his motion fails to state good cause, defendant's convictions shall be reinstated. If the court conducts the in camera hearing and finds there is no discoverable information, it shall reinstate defendant's convictions. If the court orders discovery, and defendant either files a motion for new trial that is denied, or fails to file a new trial motion, the convictions shall also be reinstated.
In all other respects, the judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
MEEHAN, J.