Opinion
B201943
7-15-2009
THE PEOPLE, Plaintiff and Respondent, v. JASON ANTHONY JOHNSON, Defendant and Appellant.
John D. OLoughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Jason Anthony Johnson (appellant) appeals from the judgment entered following a jury trial in which he was convicted of carrying a concealed firearm on his person. (Pen. Code, § 12025, subd. (a)(2).) In bifurcated proceedings, appellant admitted that he had a previous conviction of carrying a loaded firearm in violation of section 12031, subdivision (a). At sentencing, the trial court granted appellant three years of formal probation on condition that he serve 90 days in the county jail.
All further statutory references are to the Penal Code unless otherwise indicated.
At the time of this offense, appellant was on summary probation for the misdemeanor offense of carrying a loaded firearm in violation of section 12031, subdivision (a). At sentencing, the trial court terminated the order for summary probation.
He contends that the trial court (1) improperly refused to charge the jury with a unanimity instruction and (2) abused its discretion in ruling on his Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) He raises two contentions of constitutionally ineffective trial counsel: (3) trial counsel failed to object to the prosecutors cross-examination and final argument concerning his judicial admission, which concerned an offense of which he had no notice, and (4) trial counsel failed to impeach Deputy Bates during the search and seizure motion with a prior inconsistent statement. Appellant also (5) requests that this court review the record of the in camera Pitchess discovery hearing and the discovery obtained in an unrelated case pursuant to the decision in People v. Mooc (2001) 26 Cal.4th 1216 (Mooc ).
We find merit only in his contentions that the trial court abused its discretion by failing to order the disclosure of certain Pitchess discovery, and we will conditionally reverse the judgment.
FACTS
I. The Trial Evidence
A. The Prosecutions Case-in-chief
At about 9:45 p.m. on August 17, 2006, Los Angeles County Deputy Sheriffs Jason Bates and William Zollo were on duty in Compton. The deputies were gang officers assigned to Operation Safe Streets. They were driving a marked patrol car northbound and saw five youths, including appellant, on the sidewalk on the northwest corner of Bradford Avenue and East Killen Place. The youths were standing in front of the residence at 1721 East Killen Place and grouped next to a vehicle. They were apparently talking.
The information charged appellant in count 1 with possessing a loaded firearm and in count 2 with carrying a concealed firearm on his person.
Deputy Bates illuminated the youths with a spotlight, and everyone turned and looked at the patrol car. Simultaneously, appellant turned and ran with his hand on his waistband. He ran northwest to the front door of the residence at 1721 East Killen Place. As he ran, he was holding onto a handgun at his waist, and the deputies could see the butt and the grips of the handgun.
Deputy Bates quickly parked the patrol car at the west curb in front of and east of the residence. He got out of the drivers door and pursued appellant to the residences front door. There, appellant was pulling on the front doors security screen. The screen would not open. The deputy yelled at appellant to open his hands. In response, appellant put his hands up and told the deputy that he had a gun.
From appellants waistband, the deputy retrieved a Beretta nine-millimeter semiautomatic handgun. It was loaded with a magazine that contained 10 live hollow-point bullets. Appellant was arrested. Deputy Bates took appellant to the police car where Deputy Zollo had the four other youths detained: Dwayne Harris, one of appellants cousins, and teenagers Christopher L., Dwayne B., and Sherman S. The deputies released everyone but appellant. Appellant was arrested, and a male and a "young lady" walked out from the north side of the residence and contacted one of the deputies.
After appellants arrest and a Miranda waiver (Miranda v. Arizona (1966) 384 U.S. 436), appellant told the deputies that he was carrying the handgun for protection because there were shootings in the area.
Appellant impeached Deputy Bates with the deputys preliminary hearing claim that he was not the driver of the patrol car, but the "book man," i.e., Deputy Bates had been riding in the front right passenger seat of the patrol car, not in its drivers seat.
B. The Defense
In defense, appellant testified that he was a security guard who had an "exposed carry permit" so that he could carry a handgun in the course of his employment. Appellant claimed that on the night in question he was inside his aunts residence with his cousin Deon Marcus (Marcus), and he was trimming Marcuss hair and beard. Appellant mentioned to Marcus that he had just purchased a new $1,400 handgun for a new work assignment. Marcus wanted to see the handgun, and appellant went outside to retrieve it from the gun safe, which was either in his cars trunk or in the cars backseat. At the same time, appellant moved his car from the residences driveway to East Killen Place so that when his aunt arrived home, she could park her car in her driveway. Appellant retrieved the handgun from the gun safe and took the magazine out of his glove box and reentered his aunts residence. After Marcus examined the handgun, appellant put the handgun in his waistband under his long T-shirt and finished Marcuss haircut.
Appellant and Marcus heard a knock at the front door. Marcus had appellant answer the door. A deputy sheriff confronted appellant at the door and yelled, "Move and youre dead." The deputy had appellant step outside onto the porch. Appellant saw Christopher L. lying prone on the porch. The deputy searched appellant and asked him whether he had any guns or "dope." Appellant replied that he had a gun in his name. The deputy took the handgun from the waistband of his pants and yelled to the other deputy, "I have a gun." Appellant was arrested.
Appellant was uncertain as to the identity of the deputy who had contacted him at his aunts front door. He believed that it was the deputy with the hair, Deputy Zollo. In the police car, appellant told the deputies that he used the handgun at work as he was a security guard and that he had in his car the necessary paperwork to legally possess the handgun. The deputies refused to examine the paperwork. Appellant denied that he had told the deputies that he was carrying the handgun for his own protection.
During cross-examination, the prosecutor questioned appellant about how he had transported the handgun from his car into his aunts residence. Appellant replied that he had taken the handgun out of the car safe after parking his car. He then placed the handgun in his waistband and put the magazine for the handgun in a pants pocket.
At trial, Marcus corroborated many of appellants claims. In particular, Marcus testified that when appellant answered the front door, Marcus was in the bedroom and heard someone say angrily, "I have a gun. Get out." Marcus then heard the front door open and close.
Appellants aunt, Delores Harris, Marcus, and a defense investigator testified that the front security screen on the residence was broken. It did not close all the way, and it could not be secured shut.
A youth claiming to be a mere bystander, Dwayne B., testified that he was walking southbound on Bradford Avenue to eastbound East Killen Place with Sherman S. A car approached them slowly northbound. The cars headlamps were off. Dwayne B. said that Christopher L. was not with him and Sherman S. Christopher L. was standing alone at another location on the sidewalk. The approaching car looked suspicious, and Dwayne B. feared that whoever was in the car was going to commit a drive-by shooting. Christopher L. ran toward Marcuss residence, and Dwayne B. and Sherman S. started to run. Dwayne B. then saw the car, which he could now discern was a sheriffs patrol car, drive up onto Marcuss front lawn. A deputy ordered the teenagers to stop, and they complied. The passenger deputy was the deputy with the hair; the patrol cars driver was bald. Dwayne B. and Sherman S. were detained at the patrol car with Christopher L. Dwayne B. saw Deputy Bates bring appellant from the area of the residences porch. After everything was over, Dwayne Harris, another of defendants cousins, pulled up into the residences driveway in a car, and Dwayne Harris was detained.
The bald officer was Deputy Bates.
Another defense investigator testified that before trial, he had spoken to Marcus by telephone. Marcus had told the investigator that the deputies knocked, and Marcus saw the deputies enter his living room, grab appellant, and take him outside. Marcus said that appellant had retrieved the handgun from his car that night and brought the handgun into the residence to show it to Marcus. After Marcus examined the handgun, appellant had put it in his waistband.
II. The Search and Seizure Motion
A. The Hearing Evidence
Prior to trial, appellant challenged his "detention and seizure" pursuant to section 1538.5.
At the hearing on the motion to suppress, Deputy Bates testified that he had observed appellant run from the group. He illuminated the youths and saw appellant reach toward his waistband with his left hand. As appellant was running, his shirt came up. Deputy Bates could see the "white grip of a gun" and the "butt of a handgun" in appellants waistband. The deputy stopped the patrol car at the east curb or on the sidewalk just past the northwest corner. He got out of his patrol car and ran after appellant. On the residences porch, appellant grabbed the security screen over the front door and "yank[ed]" on it with his right hand. The door would not open. The deputy yelled to appellant, "Let me see your hands." As the deputy approached appellant on the porch, appellant volunteered that he had a gun in his waistband, and put up his hands. The deputy retrieved the handgun.
During cross-examination, Deputy Bates indicated that he was the driver of the patrol car. As he drove toward the youths northbound, he had the patrol cars headlamps and high beams on. The deputy claimed that he never drives a patrol car at night without turning on its headlamps. He said that such a practice is unsafe, and in his opinion, driving without headlamps does not result in better police work. Deputy Bates explained that while appellant was running, appellant was holding the handgun with his hand so it did not fall out of his waistband. The deputy was not sure whether appellant was actually holding the handgun as he ran, but he was certain that, at the very least, appellant was holding his waistband. The deputy explained, "It was extremely quick." When the deputy got out of the patrol car, he had his gun out, and he pointed it at appellant.
During Deputy Batess foot pursuit of appellant, Deputy Zollo detained the other youths. Deputy Bates denied that he had knocked on the residences front door during his contact with appellant.
In defense, Marcus testified essentially as he did later at trial. From the bedroom, Marcus heard someone say to appellant at the front door, "Get outside. I have a gun." A door slammed. Marcus dressed and went out the back door. A deputy confronted Marcus as he came around to the front of the residence. Marcus was alone; he was not with a woman. The deputy had Marcus put his hands up, and the deputy asked Marcus whether he was the resident there. Marcus replied, "Yes." The deputy inquired whether Marcus was aware that his relative "had a gun on him." Marcus replied, "Yes."
Marcus walked into the front yard. Dwayne Harris, Marcuss older brother, was inside the patrol cars backseat with appellant. Sherman S., Dwayne B., and Christopher L. were standing with their hands on the patrol car.
Marcus testified that he, his mother, his sister, and his uncle lived at the 1721 East Killen residence. When the deputy had pursued appellant, the patrol car had driven over the rounded handicap accessible curbs and "all [the] way to [his] front yard facing diagonal[ly] toward[] [the] house."
Dwayne B. testified in the same fashion as he had at trial. He said that the passenger deputy had the youths put their hands on the car after detention, and he saw Christopher L. escorted to the radio car and put into its backseat. Then Dwayne B. saw Deputy Bates escorting appellant to the patrol car. After appellant was arrested, and at the point at which Dwayne B. was released, Dwayne Harris, Marcuss brother, pulled his car into the driveway at 1721 East Killen Place. Dwayne Harris was talking on a cellular telephone, and one deputy detained him. The deputies also put Dwayne Harris into the patrol car.
Appellant testified that upon his arrival at the residence, he had parked his car in Marcuss driveway. In the middle of the haircut he was giving Marcus, he went outside, moved his car, and retrieved the handgun. After showing his cousin the handgun, he returned it to the waistband of his "dickies," the uniform he had to wear for barber school, and under the two T-shirts he was wearing, which were long and covered the handgun. At that point, no more than 10 minutes had elapsed since he had been outside and before he heard a knock on the front door. Appellant answered the door. A deputy shined a bright light into his eyes and screamed, "Move and you[re] dead." The deputy asked him to step outside, and he "stepped out" onto the front porch.
Appellant could see Christopher L. detained on the porch. The officer "frisk[ed]" appellant and at the same time asked whether he had any guns or dope. Appellant replied that he had a gun, and the deputy found it in his waistband and removed it. The deputy screamed "something to his partner." Then, the deputy took the clip for the handgun from appellants pocket. At that point, appellant volunteered, "I had the—right before I had went to the house, when I was taking the gun out [of the] car, I had grabbed the magazine, and I placed that in my back pocket." He said that the deputy handcuffed him and took Christopher L. to the patrol car. Then the deputy removed him from the porch to the patrol car and seated him inside. Appellant claimed that the patrol car was on the grass in his aunts front yard.
After appellant was inside the patrol car, he told the deputy that he had "paperwork" for the gun. The officer replied that he had run from the deputy, and appellant denied that accusation. Appellant yelled at Marcus to retrieve his permit from his car, but the deputy told him that his paperwork could be "fake." The deputy said that if appellant was telling the truth, he would be released from custody by morning.
During cross-examination, the prosecutor questioned appellant about how he had transported the handgun into his aunts residence. Appellant replied that he and Marcus were talking about the gun. He returned to his car to get the handgun from the gun safe, which was probably in the trunk of his car. He retrieved the handgun and returned inside the residence. At the same time, he took the magazine out of his glove box and put it in his pocket. He admitted that the dickies he was wearing were "extremely baggy" and much too large for him at the waist.
B. The Trial Courts Ruling
Trial counsel argued the discrepancies in the witnesses testimony and urged the trial court to find appellants version of the encounter to be credible. Counsel asserted that even assuming the trial court failed to believe appellants version of the incident, counsel questioned whether the deputy had reasonable cause for a detention as it was most probable that appellants long T-shirt would have hidden the butt of the handgun. Also, concerning appellants version of his arrest, inside the residence, appellant had the handgun underneath his T-shirt. There was no testimony that the deputy observed the handgun before he ordered appellant out of the residence, and appellant testified to circumstances indicating that the deputy would have been aware of the handgun only after he was told by appellant of the presence of the handgun in his waistband. Also with respect to credibility, Deputy Bates only yelled out to his partner there was a firearm after appellant was detained on the porch and frisked.
The prosecutor argued credibility generally and asserted that it was incredible that the deputy, who had no reason to know that appellant was inside his aunts residence with a firearm, would knock on the front door and "drag[] appellant" outside.
The trial court denied the search and seizure motion. It observed that the issue at the hearing was credibility. It said that whether or not the deputy saw the handgun, the deputy had reasonable cause to detain appellant after seeing him quickly run from the group upon the patrol cars approach. Also, the trial court said that it had concluded that the deputy saw enough of the handgun while appellant was running to have reasonable or probable cause to believe that appellant had the handgun. Consequently, the deputy was justified in detaining appellant to retrieve the handgun.
DISCUSSION
I. The Unanimity Instruction
Appellant contends that the trial courts refusal to charge the jury with a unanimity instruction at his request was federal and state constitutional error and that he was denied his right to a unanimous jury verdict. We disagree.
A. Background
During final argument at trial, the prosecutor argued that the key issue in the case was credibility and that the trial evidence presented two versions of the facts about what had transpired on August 17, 2006. She informed the jury that it was their duty to determine who was telling the truth and whether or not they believed the deputies. She commented that whether or not the jurors believed the deputies, appellant in any event was guilty of the offense of carrying a concealed handgun. She pointed out that during his testimony, appellant had admitted the charge of concealing: he testified that in transporting his handgun from the gun safe in his car into the residence, he stuck the firearm into his waistband and carried it into the residence tucked into his pants.
In addressing the jury, trial counsel agreed that there were two inconsistent versions of the evidence. He urged that the prosecutors opening comments to the jury indicated that the prosecutor believed that she did not have a strong case. She was pinning her hopes for a guilty verdict on the argument that appellant had admitted the offense by describing how he transported the handgun into the residence, i.e., by putting it into his waistband. Trial counsel pointed out that no one had asked appellant at that point whether or not he had covered the handgun with his T-shirt. Thus, the proof indicated that the handgun was exposed. Appellant had a permit to carry the handgun when it was exposed. He argued that the prosecutor was asking the jury to speculate that appellant had "conceal[ed]" the handgun when he carried the handgun from the car to the residence.
In rebuttal, the prosecutor argued that it did not matter during a trial which party introduced the evidence of guilt; the evidence was the evidence. Appellant had testified that he was carrying a concealed firearm on his person because carrying a handgun tucked into ones waistband with only its handle protruding was "concealment" within the meaning of the statute. She argued that the only requirement for concealment is that most of the firearm had to be hidden from view. Even if appellants shirt was tucked into his waistband, rather than hanging over the handgun, what appellant had in effect admitted was a "concealment."
Section 12025, provides in pertinent part, as follows: "(a) A person is guilty of carrying a concealed firearm when he or she does any of the following: (1) Carries concealed within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person. [¶] (2) Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person. [¶] . . . [¶] (f) Firearms carried openly in belt holsters are not concealed within the meaning of this section." (Italics added.)
Section 12026 provides, as follows: "(a) Section 12025 shall not apply to or affect any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, who carries, either openly or concealed, anywhere within the citizens or legal residents place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident any pistol, revolver, or other firearm capable of being concealed upon the person. [¶] (b) No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, to purchase, own, possess, keep, or carry, either openly or concealed, a pistol, revolver, or other firearm capable of being concealed upon the person within the citizens or legal residents place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident." (Italics added.)
Section 12026.1 provides that "(a) Section 12025 shall not be construed to prohibit any citizen of the United States over the age of 18 years who resides or is temporarily within this state, and who is not prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm, from transporting or carrying any pistol, revolver, or other firearm capable of being concealed upon the person, provided that the following applies to the firearm: [¶] (1) The firearm is within a motor vehicle and it is locked in the vehicles trunk or in a locked container in the vehicle other than the utility or glove compartment. [¶] (2) The firearm is carried by the person directly to or from any motor vehicle for any lawful purpose and, while carrying the firearm, the firearm is contained within a locked container. [¶] (b) The provisions of this section do not prohibit or limit the otherwise lawful carrying or transportation of any pistol, revolver, or other firearm capable of being concealed upon the person in accordance with this chapter. [¶] (c) As used in this section, `locked container means a secure container which is fully enclosed and locked by a padlock, key lock, combination lock, or similar locking device." (Italics added.)
In the decision in District of Columbia v. Heller (2008) 554 U.S. ___ (128 S. Ct. 2783, 2788; 171 L.Ed.2d 637), the United States Supreme Court held that the Second Amendment protects an individuals right to possess firearms and that the citys total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right. However, the Heller decision does not affect the constitutionality of section 12025, subdivision (a). (See People v. Flores (2008) 169 Cal.App.4th 568, 575-576; People v. Yarbrough (2008) 169 Cal.App.4th 303, 312-314.) Also, although technically a violation of Californias statutes, the prosecution in this case declined to prosecute appellant for possessing the concealed firearm inside his aunts residence.
After final arguments were completed, trial counsel asked the trial court to give a unanimity instruction. Counsel claimed that he was surprised during final argument when the prosecutor argued that regardless of the issue of officer credibility, appellant could be convicted on the basis of his admission that he had carried his handgun into his aunts residence tucked into his waistband. Counsel asked for the unanimity instruction so that the jurors would unanimously agree "on at least one of the two theories" of the trial evidence. The prosecutor replied that there was no requirement that the jury agree unanimously on which set of circumstances it believed.
The trial court refused the instruction. The trial court observed that it was not as if appellant had admitted that he had committed the criminal act in another time frame. When trial counsel protested there were two criminal acts, the trial court replied that the "transaction [took] place within the same orbit, so to speak." It commented that appellant had testified in defense that the deputies did not find him outside with the concealed firearm because he had already taken the firearm inside the residence, and the officers had ordered him out of the house in order to retrieve it. In explaining his story, appellant had claimed that he had the handgun when he had entered his aunts residence a few minutes earlier, but it was unloaded, of course.
Trial counsel urged that if the prosecution had been previously aware of appellants version of events, they would have been required to charge two separate offenses. The trial court said that it understood the defense argument: the question was how close did the two versions of the event have to be in time before it was appropriate to simply charge one discrete criminal act.
Trial counsel complained that only the prosecutor was empowered to request an amendment of the information to add a third count. The trial court replied that even if it was empowered to so amend the information, it would not do so.
The trial court had charged the jury on the elements of carrying a concealed firearm, as follows: "To prove that the defendant is guilty [of unlawfully carrying a concealed firearm on his person,] the People must prove that one, the defendant carried on his person a firearm capable of being concealed on the person. Two, the defendant knew he was carrying a firearm. Three, it was substantially concealed on the defendants person. A firearm capable of being concealed on the person is any device designed to be used on the person from which a projectile is expelled or discharged through a barrel by the force of an explosion or other form of combustion and has a barrel less than 16 inches in length. A firearm does not need to be in working order if it was designed to shoot and appears capable for shooting. The defendant did not unlawfully carry a concealed firearm if he was inside the residence. The people have the burden of proving beyond a reasonable doubt that the defendant unlawfully carried a concealed firearm. If the People have not met this burden, you must find the defendant not guilty of this crime." (Italics added.)
The jury acquitted appellant of the latter offense.
B. The Relevant Legal Principles
Article I, section 16, of the California Constitution provides in relevant part that `"Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. By implication, of course, in criminal actions, section 16 requires jury unanimity." (People v. Feagley (1975) 14 Cal.3d 338, 350, fn. 10; People v. Smith (2005) 132 Cal.App.4th 1537, 1545, fn. 8; see People v. Engelman (2002) 28 Cal.4th 436, 442, 444; People v. Nesler (1997) 16 Cal.4th 561, 578.)
The court in People v. Russo (2001) 25 Cal.4th 1124, said the following: "In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. (People v. Diedrich (1982) 31 Cal.3d 263, 281.) Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]
"This requirement of unanimity as to the criminal act `is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. [Citation.] For example, in People v. Diedrich, supra, 31 Cal.3d 263, the defendant was convicted of a single count of bribery, but the evidence showed two discrete bribes. We found the absence of a unanimity instruction reversible error because without it, some of the jurors may have believed the defendant guilty of one of the acts of bribery while other jurors believed him guilty of the other, resulting in no unanimous verdict that he was guilty of any specific bribe. (Id. at pp. 280-283.) `The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count. (People v. Deletto (1983) 147 Cal.App.3d 458, 472.)" (People v. Russo, supra, 25 Cal.4th at p. 1132; accord, People v. Melhado (1998) 60 Cal.App.4th 1529, 1536; see also People v. Davis (2005) 36 Cal.4th 510, 561; People v. Maury (2003) 30 Cal.4th 342, 423; People v. Jenkins (2000) 22 Cal.4th 900, 1025; People v. Beardslee (1991) 53 Cal.3d 68, 92.)
Affecting as it does the defendants constitutional right to fair notice of the charges, a trial courts failure to order an election or in the alternative, to give a unanimity instruction requires a reversal, unless the error can be deemed harmless beyond a reasonable doubt. (People v. Salvato (1991) 234 Cal.App.3d 872, 883.)
There is no federal right in a noncapital state prosecution to a unanimous jury verdict. (Schad v. Arizona (1991) 501 U.S. 624, 634-636 & fn. 5; Johnson v. Louisiana (1972) 406 U.S. 356, 359; In re Carpenter (1995) 9 Cal.4th 634, 676-677; People v. Coelho (2001) 89 Cal.App.4th 861, 875 & fn. 7; cf. People v. Wolfe (2003) 114 Cal.App.4th 177, 185-186 [recognizing that there is a split of authority on the proper standard for reviewing prejudice when the trial court fails to give an appropriate unanimity instruction and collecting cases]; People v. Vargas (2001) 91 Cal.App.4th 506, 561-562 [recognizing the split in authority and applying People v. Watson (1956) 46 Cal.2d 818, 836]; People v. Deletto (1983) 147 Cal.App.3d 458, 470-472 [applying the test in Chapman v. California (1967) 386 U.S. 18, 24, to the failure to give a unanimity instruction].)
C. The Analysis
A unanimity instruction is not required where the criminal acts are so closely connected as to form a single transaction or where the offense itself consists of a continuous course of conduct. (People v. Diedrich, supra, 31 Cal.3d at p. 282.) In such cases, the multiple acts constitute one discrete criminal event. (People v. Russo, supra, 25 Cal.4th at p. 1135.) The unanimity instruction is appropriate "`when conviction on a single count could be based on two or more discrete criminal events," but not "`where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event." (Ibid.)
The trial court did not err in refusing the requested unanimity instruction because the trial court was confronted with multiple theories or acts relating to one discrete criminal event. Consequently, no unanimity instruction was required—the evidence showed only one discrete crime and left room for disagreement as to exactly how the crime was committed. (People v. Russo, supra, 25 Cal.4th at p. 1136.) Also, there were not two discrete criminal acts involved here because the trial court explicitly instructed the jury that possessing the concealed handgun inside the aunts residence did not constitute a violation of law.
II. Ineffective Trial Counsel As It Concerns Notice
Appellant contends that trial counsel was constitutionally ineffective because he failed to prevent appellants conviction based upon his judicial admission. The argument is, as follows. As a matter of statutory rights and due process, appellant is entitled to notice of the criminal acts for which the prosecution was seeking his conviction. When his trial counsel failed to object to the elicitation of appellants judicial admission and to the prosecutors argument based on the judicial admission, trial counsel waived procedural rights that would have prevented appellants conviction based on that admission. The contention fails to persuade us.
A. The Relevant Legal Principles
1. The Test for Ineffective Trial Counsel
"To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show both that his counsels performance was deficient when measured against the standard of a reasonably competent attorney and that counsels deficient performance resulted in prejudice to defendant in the sense that it `so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (Strickland v. Washington (1984) 466 U.S. 668, 686 . . . [(Strickland)].)" (People v. Kipp (1998) 18 Cal.4th 349, 366.) If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
2. Notice
One accused of a crime must be informed of the nature and cause of the accusation. (U.S. Const., 6th Amend.) "`It is fundamental that "when a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime. . . ."" (People v. Thomas (1987) 43 Cal.3d 818, 823.) Federal due process of law does not require a state to adopt any particular form of procedure for giving a defendant notice, so long as it appears that the accused has had sufficient notice of the accusation and an adequate opportunity to defend during the prosecution. (Garland v. Washington (1914) 232 U.S. 642, 645; see also Cole v. Arkansas (1948) 333 U.S. 196, 201; People v. Jones (1990) 51 Cal.3d 294, 317.) Where a defendant does not receive adequate notice, he must object to the lack of notice at trial and seek a continuance. Otherwise, he has not preserved the right to assert the lack of notice on appeal. (People v. Seaton (2001) 26 Cal.4th 598, 641.)
By statute, "[a]n indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination." (§ 1009.) Section 739 only authorizes the filing of an information that charges the defendant with the offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed. Article I, section 14, of the California Constitution provides that "Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information."
"An information which charges a criminal defendant with multiple counts of the same offense does not violate due process so long as (1) the information informs defendant of the nature of the conduct with which he is accused and (2) the evidence presented at the preliminary hearing informs him of the particulars of the offenses which the prosecution may prove at trial. [Citations.] The information plays a limited but important role—it tells a defendant what kinds of offenses he is charged with and states the number of offenses that can result in prosecution. However, the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript. This is the touchstone of due process notice to a defendant. [Citation.] So long as the evidence presented at the preliminary hearing supports the number of offenses charged against defendant and covers the timeframe(s) charged in the information, a defendant has all the notice the Constitution requires. The defendant may demur if he or she believes the lack of greater specificity hampers the ability to defend against the charges. (§ 1004, subd. 2.) Failure of a defendant to demur bars any assertion on appeal of vagueness in the information. (§ 1012.)" (People v. Jeff (1988) 204 Cal.App.3d 309, 342; accord People v. Jones, supra, 51 Cal.3d at pp. 311-317.)
B. The Analysis
Appellants contention is flawed. The premise underlying the contention is that appellant was denied due process under the state and federal Constitutions and prosecuted in violation of section 1009 with a charge not shown by the evidence taken at the preliminary hearing. Consequently, his trial counsel should have objected when the prosecutor cross-examined him at trial to elicit unrelated criminal conduct, i.e., his carrying his handgun into the residence, which was substantially concealed in his waistband and probably covered by his long T-shirt.
However, appellant suffered no lack of notice in that he was not improperly prosecuted on an unalleged charge. The information gave him notice of the nature of the criminal act with which he was charged, the number of criminal acts with which he was charged, and the date of the occurrence. (People v. Butte (2004) 117 Cal.App.4th 956, 959.) Appellant never made a request for a continuance to meet new evidence, nor did he demur. At the search and seizure motion and at trial, appellant was cross-examined about and testified to obtaining his nine-millimeter handgun from his car and carrying it into the residence in the belt or the waistband of his dickies. This act occurred just 10 minutes or so prior to the claimed contact with the deputy at his cousins front door.
There is no constitutional objection to convicting someone of an act related to and connected with the transaction which forms the basis for the commitment order. (Jones v. Superior Court (1971) 4 Cal.3d 660, 664-665; People v. Gil (1992) 3 Cal.App.4th 653, 658-659; Mulkey v. Superior Court (1963) 220 Cal.App.2d 817, 823-824.) This is not a case where the trial court lacked jurisdiction because the defendant was convicted of an offense not shown by the preliminary hearing testimony. The preliminary hearing evidence conformed to the deputies version of the trial evidence. The trial evidence consisted of two versions of the same incident; one told at trial by the deputies, and the other told at trial by appellant and the defense witnesses. The two versions of events occurred within minutes of one another. The concealment described by appellant purportedly occurred just prior to the deputies arrival and was part and parcel of the discrete criminal act for which appellant was arrested and prosecuted. Appellant did not lack notice of this version of the evidence as it was he who introduced this alternate version of the events at trial.
After appellant disclosed at the search and seizure motion that virtually minutes prior to his arrest he had carried the handgun in from the car, the prosecutor was entitled at trial to cross-examine him as to the circumstances of that transportation of the handgun. Even if trial counsel had objected to the cross-examination on the grounds it was unduly prejudicial other crimes evidence and unrelated to the charge in the information, such an objection would have been futile. Appellants testimony on this point was relevant as it constituted the offense and because it had a tendency to impeach appellants claims as to how the confrontation with the deputies had occurred.
On this record, appellant has failed to support his claim of a lack of notice on constitutional or statutory grounds. Accordingly, he has failed to show the requisite prejudice to meet the two-prong test in Strickland for ineffective trial counsel. Without a showing of prejudice, this court may reject appellants contention without determining whether trial counsels performance was deficient. (People v. Kipp (2001) 26 Cal.4th 1100, 1123, citing Strickland, supra, 466 U.S. at p. 697.)
Appellant attempts to support his contention with the decision in People v. Burnett (1999) 71 Cal.App.4th 151. However, Burnett does not assist appellant because the discrete criminal acts there occurred on different days. (Id. at pp. 180-183; see also People v. Burnett, supra, at pp. 185-189 (conc. opn. of Lambden, J.).) Also, in Burnett, it was the prosecution, not the defense, that introduced the alternate theory of the events into evidence. (Id. at pp. 185-187 (conc. opn. of Lambden, J.).)
III. Ineffective Trial Counsel Concerning Impeachment
Appellant contends that his trial counsel was constitutionally ineffective because counsel failed to impeach Deputy Bates at the search and seizure motion with an inconsistent statement the deputy made at the preliminary hearing. We disagree.
A. Background
During the pretrial search and seizure motion, Deputy Bates testified that he was driving the patrol car just prior to contacting appellant. Appellant could not recall which deputy had contacted him at the front door and arrested him. Dwayne B. saw Deputy Zollo driving the patrol car that night.
At the preliminary hearing, Deputy Bates testified that he was the "book man" that evening, i.e., he was the passenger in the patrol car.
At the search and seizure motion, trial counsel failed to impeach the deputy with the deputys inconsistent preliminary hearing testimony concerning his position in the patrol car. Trial counsel did, however, use Deputy Batess prior inconsistent statement at trial for impeachment.
B. The Analysis
We set out the relevant legal principles for determining ineffective trial counsel in part II, ante.
Appellant urges that the failure to impeach Deputy Bates at the search and seizure motion with his preliminary hearing testimony establishes a valid claim of ineffective trial counsel. The People disagree. They urge that the decision to await trial to impeach Deputy Bates was a tactical decision. The People have the better argument.
Here, the record fails to reveal trial counsels reason for withholding the impeachment until trial. However, contrary to appellants claim, there is a satisfactory explanation for trial counsel having withheld the impeachment. The motion to suppress, unlike the charges at trial, is determined by the trial court. Trial counsel could have rationally believed that the trial court would find the discrepancy in the deputys testimony to be insignificant and that it did not affect the trial courts evaluation of credibility. A trial court likely would assume that Deputy Bates had simply forgotten during the preliminary hearing where he was sitting in the patrol car. Bringing up this discrepancy early in the proceedings and before the trial court, rather than in the presence of the jury, would put the prosecutor on notice that Deputy Bates was subject to the impeachment at trial. Impeachment of this sort is more likely to impress a jury than it will a trial court. The deputies credibility, particularly that of Deputy Bates, was the crucial issue at trial. If the deputy had been impeached prior to trial, the prosecutor probably would have been prepared to meet the impeachment at trial. As it was, waiting to impeach Deputy Bates until trial and until after the deputy had left on vacation, apparently surprised the prosecution and left it in a position where it could not respond. The impeachment at trial may well have been the reason the jury acquitted appellant of the charge of carrying a loaded weapon.
Delaying the impeachment was a reasonable tactical decision. Trial counsel may have believed that it was highly unlikely that appellant would prevail during the suppression hearing and that the impeachment would be put to better use at trial. Consequently, appellant has failed to carry his burden of demonstrating a deficient performance by trial counsel, and we may dispose of the contention on that ground. (People v. Ledesma (2006) 39 Cal.4th 641, 746.)
IV. The Pitchess Discovery
Appellant filed a Pitchess motion. The trial court granted partial discovery as to Deputy Bates and denied all discovery as to Deputy Zollo. In camera, the trial court found no citizen complaints in the categories for which it had ordered discovery as to Deputy Bates. Appellant contends that the trial court abused its discretion when it entered its discovery orders. We have concluded that the contention requires a conditional reversal of the judgment.
A. The Contents of the Pitchess Motion
Before trial, appellant filed a "Notice of Motion for Pretrial Discovery (Pitchess and Brady)." ( Brady v. Maryland (1963) 373 U.S. 83 (Brady).) He requested a disclosure from Deputy Batess and Deputy Zollos personnel records as to any citizens who had complained of or witnesses to any incidents of "(1) fabrication of charges, (2) fabrication of evidence, (3) fabrication of reasonable suspicion and/or probable cause, (4) illegal search/seizure, (5) false arrest, (6) perjury, (7) dishonesty, (8) writing of false police reports, (9) writing of false police reports to cover up the use of excessive force, (10) planting of evidence, (11) false or misleading internal reports including but not limited to false overtime or medical reports, (12) complaints of acts, which if true would arguably be a misdemeanor or felony of moral turpitude, such as, but not limited to, use of any firearm, PR-22, billy club, sap, pepper spray, fists or feet against individuals or any use of force against an individual in handcuffs or otherwise restrained not in self-defense and any other evidence of misconduct amounting to moral turpitude within the meaning of People v. Wheeler (1992) 4 Cal.4th 284 [(Wheeler)] and (13) any claim or complaint that relating failure to report any act on the part of another member of the Department specified in items (1) through (12)." He also requested "[a]ny other material which is exculpatory or impeaching within the meaning of Brady."
He supported his request with trial counsels declaration, as follows. "Defendant is accused of possession of a handgun. Dep. Bates while with his partner Dep. Zollo claims in his police report that he saw [appellant] among a group of individuals in front of 1721 E. Killen Place in . . . Compton. He wrote that as he and his partner approached the group, [appellant] grabbed his waistband and began running to the front door of the location. At that time, he claims [that he illuminated appellant] and saw the white grips and butt of a handgun partially concealed in [appellants] waistband. Dep. Bates then claims to have contacted defendant on the porch of the location as [appellant] was trying to enter it." Trial counsel asserted that the deputies were lying in claiming that (1) they saw appellant run from where he was standing with a group of youths on the street to the residences porch, (2) the deputies saw appellant running with the grips and butt of a handgun exposed, and (3) appellant was detained by Deputy Bates at the residences front door attempting to enter the residence. Appellant would dispute the prosecutions version of the evidence at trial and during the search and seizure motion. Trial counsel was informed and believed that the defense would be that appellant was inside his cousins residence when there was a knock on the door. He answered the door and saw Deputy Bates and another young African-American youth he did not recognize outside on the porch. The deputy "ordered" appellant "to step outside," and appellant "complied." When the deputy encountered appellant, the handgun seized was inside the residence, and appellant did not reach toward it or hold it in his hand prior to when he opened the door after the officer knocked.
In his declaration, trial counsel said that he had attempted to contact Deputy Zollo so as to determine whether the deputy would testify consistently with Deputy Bates. Deputy Zollo did not respond, and trial counsel had no way to depose Deputy Zollo or to compel him to respond to interrogatories. It is trial counsels belief and experience that a deputys partner will almost always testify consistently with the deputys testimony. To deny the defense discovery as to Deputy Zollo would handicap the defense at trial if the deputy is called as witness to corroborate Deputy Batess testimony. Trial counsel claimed that if Deputy Zollo fails to respond to trial counsels request for an interview, he could request the prosecutor to secure a statement from the deputy or in the alternative, he could subpoena the deputy to testify at the Pitchess hearing.
Trial counsel attached a copy of the arrest report to the motion. The report indicated that Deputy Bates was the arrest reports author.
The response to the motion is not part of the appellate record.
B. The Hearing and the Trial Courts Ruling
Trial counsel told the trial court that he submitted the motion with the observation that his declaration made a prima facie case "on the issues of complaints that would affect the credibility from a finder-of-fact, such as a lay juror." Also, he argued that discovery should be granted as to both deputies.
The trial court granted discovery as to items (1), (2), (3), (5), (6), (7) and (8), and only with respect to Deputy Bates.
The trial court granted discovery of the following categories of information: (1) the fabrication of charges, (2) the fabrication of evidence, (3) the fabrication of reasonable or probable cause, (5) false arrest, (6) perjury, (7) dishonesty, and (8) the writing of false police reports.
It denied discovery as to the following categories of information: (4) illegal search and seizure, (9) the writing of false police reports to cover up the use of excessive force, (10) the planting of evidence, (11) false or misleading internal reports including but not limited to false or overtime or medical reports, (12) complaints of acts, which if true, would arguably be a misdemeanor or felony of moral turpitude, such as, but not limited to, the use of any firearm, PR-22, billy club, sap, pepper spray, fists or feet against individuals or any use of force against an individual in handcuffs or otherwise restrained not in self-defense and any other evidence of misconduct amounting to moral turpitude within the meaning Wheeler, supra, 4 Cal.4th 284, and (13) any claim or complaint that relating failure to report any act on the part of another member of the Department specified in items (1) through (12).
Trial counsel asked the trial court to indicate its reasons for refusing discovery as to items (4) and (9) through (12). It urged that these categories would be "similarly applicable, especially since the gravamen of the defense is the factors relating to probable cause where—which is where we think that the credibility issue is." He argued that "similarly, [granting discovery as to] illegal search and seizure would be reasonable, although fabrication, it would seem that would be evidence that would be related to whats really at issue, as would the writing of false police reports, planting of evidence, or false or misleading internal reports, it would all be evidence of dishonesty that would relate to the same topic."
The trial court replied that it was granting discovery as to item No. (8). It inquired whether trial counsel was addressing himself to items No. (9) through (12). Trial counsel replied, "Yes." The trial court explained that it failed to find "any basis [for the discovery of those items] in the papers and in the opposition . . .
"The following day, the trial court held an in camera Pitchess hearing with a custodian of records from the sheriffs department. After meeting in chambers with the custodian, the trial court entered in its minutes that it had found no "discoverable items" with regard to Deputy Batess personnel file and that no further Pitchess discovery was required.
C. The Posttrial Request for Pitchess Discovery
After trial, trial counsel filed a renewed Pitchess motion. Trial counsel asserted that he was counsel of record in an unrelated felony case, the Los Angeles County Superior Court case entitled, People v. Shannon Strider, case No. TA087989 (Strider). The discovery obtained in Strider involved Deputy Bates and Deputy Zollo and a similar scenario. In that case, trial counsel had obtained discovery that he deemed should have been discoverable in the current case. He wanted to prepare a motion for a new trial based on that unrelated discovery. There was an outstanding protective order in Strider. Consequently, trial counsel had to first obtain permission from the trial court in Strider to disclose the content of that discovery in this case. Counsel asserted that he wanted to have the instant trial court determine based on the Strider information whether he had been denied appropriate discovery and whether, on that basis, appellant was entitled to a new trial.
The same day, trial counsel filed a "Motion for Modification of the Protective Order" in Strider. In the motion, trial counsel argued that the two cases had a similar defense and that disclosure was ordered in Strider. The motion indicated that trial counsel believed that "either the complaints disclosed [in Strider] were not before the trial court [in camera in the instant case] or the trial court conducting the hearing did not understand [the] significance [of the complaints]." Trial counsel wanted the protective order modified so he could challenge the Pitchess order in the instant case.
In this request for further Pitchess discovery, trial counsel also renewed his request that discovery be made with respect to Deputy Zollo. He cited the decision in Hinojosa v. Superior Court (1976) 55 Cal.App.3d 692, 697, and argued that as a rule, efforts to interview a police officer in conjunction with a Pitchess motion are fruitless because the officers do not respond. Or if they are contacted, the officers decline to be interviewed by defense investigators. Ultimately, trial counsel had not requested a defense investigator attempt to speak to Deputy Zollo. He explained that in his experience, such a request would be futile and a waste of public defender resources.
The trial court held a hearing on the renewed defense motion for Pitchess discovery in the instant case. It ruled there was no good cause for granting the requested relief.
D. The Sentencing Proceedings
At sentencing, for the record, trial counsel explained that he was not making a new trial motion in the case based on the denial of Pitchess discovery. He said that after trial, in an unrelated case, another bench officer had ordered discovery concerning the same two deputies. The deputies had stopped another client of his. Trial counsel said that the issues in the two cases appeared to him to be very similar. The protective order in the unrelated case prevented him from mentioning the specific facts from the Strider case that might support a motion for a new trial.
The prosecutor objected that the Pitchess proceedings in the unrelated case were irrelevant. He said that the trial court had already ruled that it would not reopen the Pitchess issue and had refused to consider the Pitchess discovery in Strider.
E. The Relevant Legal Principles
The court in People v. Salcido (2008) 44 Cal.4th 93, recently summarized the relevant legal principles, as follows: "`On a showing of good cause a criminal defendant is entitled to discovery of relevant documents or information in the personnel records of a police officer accused of misconduct against the defendant. (Evid. Code, § 1043, subd. (b).) (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 [(Warrick )].) To determine whether the good cause requirement has been met, a trial court must consider whether the defense has established (1) that the information is material to the subject matter of the pending litigation, and (2) `"a `reasonable belief that the agency has the type of information sought." (Ibid.) The defense must demonstrate a logical connection between the charges and the proposed defense, and also `"articulate how the discovery being sought would support such a defense or how it would impeach the officers version of events." (Garcia v. Superior Court (2007) 42 Cal.4th 63, 71.) `The information sought must be described with some specificity to ensure that the defendants request is confined to the instances of officer misconduct related to what has been claimed by the defendant. (Ibid.)" (People v. Salcido, supra, at pp. 145-146.)
"`[T]he information sought must be requested with sufficient specificity to preclude the possibility of a defendants simply casting about for any helpful information." (Garcia v. Superior Court, supra, 42 Cal.4th at p. 70, quoting Mooc, supra, 26 Cal.4th at p. 1226.) A trial courts decision on the discoverability of the material in police personnel files is reviewed for an abuse of discretion. (People v. Cruz (2008) 44 Cal.4th 636, 670.)
F. The Analysis
Appellant argues that he made a sufficient showing in his Pitchess motion to compel the discovery of all the items requested and to obtain discovery with respect to Deputy Zollo, and not merely as to Deputy Bates.
1. The Discovery with Respect to Deputy Bates
We agree with the People that the trial court properly exercised its discretion when it refused the discovery of items Nos. (9), (10), (11), (12), and (13), and when it refused to comb the deputies entire personnel files for Brady material. However, the trial court abused its discretion when it failed to order the disclosure of item (4), concerning "illegal searches and seizures."
The Warrick court was very specific concerning the foundational element of materiality. It said the following: "[T]he information sought must be described with some specificity to ensure that the defendants request is not so broad as to garner `"all information which has been obtained by the People in their investigation of the crime" but is limited to instances of officer misconduct related to the misconduct asserted by the defendant. [Citation.]" (Warrick, supra, 35 Cal.4th at p. 1021.) "This specificity requirement excludes requests for officer information that are irrelevant to the pending charges." (Ibid.) The declaration must identify the specific types of officer misconduct information, among those requested, that support the defense or defenses to the pending charges. (Ibid.) This materiality requirement thus aids the trial court in selecting during the in camera hearing the general types of complaints of officer misconduct the defense seeks to support a defense. (Id. at pp. 1021-1022.) "The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses." (Id. at pp 1024-1025.)
Materiality is determined by the trial court based on the declaration in the Pitchess motion, the parties argument on the motion, and the police report. (Warrick, supra, 35 Cal.4th at pp. 1024-1025.) The allegations in the declaration must be factually specific and tailored to support the claims of officer misconduct. (Id. at p. 1027.) The trial court inquiry concerning materiality is, as follows: "Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? Under what theory would the requested information be admissible at trial? If defense counsels affidavit in support of the Pitchess motion adequately responds to these questions, and states `upon reasonable belief that the governmental agency identified has the records or information from the records ([Evid. Code, ]§ 1043, subd. (b)(3)), then the defendant has shown good cause for discovery and in-chambers review of potentially relevant personnel records of the police officer accused of misconduct against the defendant." (Warrick, supra, at p. 1027.)
Here, the declaration of trial counsel and the other materials presented in the Pitchess motion constituted allegations sufficient to establish that appellant intended at trial and at the motion to suppress to assert that the scenario set out in the arrest report by Deputy Bates was a fabrication. Trial counsel enumerated in his declaration the specific claims made by Deputy Bates in the report that were untrue and then set out his own, alternate scenario of events that had occurred that evening. Trial counsel asserted that he would raise the fabrication defense at the pretrial motion to suppress, as well as at trial. By implication, the declaration asserted that Deputy Zollo would have been aware of any fabrication by Deputy Bates; and that in all probability, Deputy Zollo would testify at trial and during the other proceedings in conformity with the testimony of Deputy Bates.
a. Item (4): The Request for Complaints Regarding "Illegal Search and Seizure"
The trial court abused its discretion when it failed to order discovery of item (4), citizen complaints concerning illegal searches and seizures.
In his declaration, trial counsel specifically alleged that he would be attacking the credibility of Deputy Bates as to specific claims the deputy made in his arrest report. Counsel indicated that appellant would be making claims at the motion to suppress of an illegal detention, unjustified patdown searches, and false arrest, including that the deputies did not observe appellant running with the butt of the handgun exposed to the front door. Trial counsels declaration by implication also indicated that he would be making claims of an illegal search and seizure concerning his own version of the events of his arrest. The events outlined and the claims of potential defenses set out in the declaration, when examined in light of the arrest report, established the materiality of citizen complaints concerning "illegal search and seizures."
b. Items (9) and (11)
Based on trial counsels declaration, the trial court properly refused discovery of items (9) and (11), respectively, writing false police reports to cover up the use of excessive force, and preparing false or misleading internal reports including but not limited to false overtime or medical reports. These requests for information were subsumed within the other categories of information ordered disclosed. Also, as to these items, the declaration failed to support a finding of materiality. The use of excessive force or a threat of excessive force were not at issue according to the declaration (see, e.g., People v. Hustead (1999) 74 Cal.App.4th 410, 417), and the request for false or misleading internal reports, including false overtime or medical reports, was overly broad.
c. Item (10)
With respect to item (10), the planting of evidence, that sort of deputy misconduct was not at issue. Appellant admitted that when the deputy detained him, he had the pistol in his waistband and that it was concealed by his T-shirt. He made no claim that the handgun or anything else was planted on him by one of the deputies—by implication from the facts stated in the declaration his claim was that the officer had no probable cause to arrest him as he had legal possession of a concealed firearm inside his aunts residence.
d. Item (12) and the Brady and Impeachment Information, Generally
As to appellants request for general impeachment/Brady and Wheeler information, as is explained by the Warrick court, Pitchess discovery requests for information contained in confidential police personnel records are required to be narrowly tailored to the specific officer misconduct alleged in the declaration. (See also City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1, 15-16 (Brandon).)
The court in People v. Gutierrez (2003) 112 Cal.App.4th 1463, at pages 1474 to 1475 (Gutierrez), explained that the Pitchess framework for discovery does not preclude a disclosure of Brady information. But the Pitchess statutory procedures are the only avenue in California by which complaints lodged with the police department against a police officer may be discovered. Unless the prosecution has brought its own Pitchess motion, the prosecutor does not have access to confidential peace officer files. The prosecutor therefore has no obligation outside of the materials he obtains during Pitchess procedures to make a Brady disclosure concerning information contained in police personnel files. There is no indication in this record that the prosecutor made a motion for Pitchess discovery.
Also, this states statutory scheme creates both "a broader and lower threshold for disclosure than does the high courts decision in Brady, supra, 373 U.S. 83." (Brandon, supra, 29 Cal.4th at p. 14.) "`Unlike Brady, Californias Pitchess discovery scheme entitles a defendant to information that will "facilitate the ascertainment of the facts" at trial [citation], that is, "all information pertinent to the defense" [citation]. (Brandon, supra, 29 Cal.4th at p. 14.) To obtain disclosure `[u]nder Pitchess, a defendant need only show that the information sought is material "to the subject matter involved in the pending litigation." [Citation.] Because Bradys constitutional materiality standard is narrower than the Pitchess requirements, any citizen complaint that meets Bradys test of materiality necessarily meets the relevance standard for disclosure under Pitchess. [Citation.] (Brandon, supra, at p. 10, italics added.) Thus, if a defendant meets the good cause requirement for Pitchess discovery, any Brady material in an officers file will necessarily be included. Stated conversely, if a defendant cannot meet the less stringent Pitchess materiality standard, he or she cannot meet the more taxing Brady materiality requirement." (Gutierrez, supra, 112 Cal.App.4th at p. 1474.)
It does not violate the principles in Brady for the state to require a showing of materiality before a defendant may access state-held confidential information. (Gutierrez, supra, 112 Cal.App.4th at p. 1475, citing Pennsylvania v. Ritchie (1987) 480 U.S. 39, 57-59 & fn. 15.) Trial counsels requests for impeachment/Brady and Wheeler-type information were not narrowly tailored to the circumstances of the case or to the claimed defenses. Accordingly, these requests were properly denied as overbroad. Furthermore, the trial court ordered the discovery of item (7)—any citizen complaints concerning dishonesty. In this context, that order would obtain for appellant all relevant acts of moral turpitude.
e. Item (13)
Item (13) "any claim or complaint that relating failure to report any act on the part of another member of the Department specified in items (1) through (12)" is not directed to the discovery of citizen complaints concerning Deputy Bates. As it is pertinent to the discovery of complaints as to Deputy Zollo, it will be addressed below in part 2.
2. Discovery as to Deputy Zollo
Appellant asserts that the trial court abused its discretion when it failed to order discovery as to Deputy Zollo. We agree. As appellant points out, the authorities support the discovery of the personnel records of the deputies who are "directly involved in the fracas" (Hinojosa v. Superior Court, supra, 55 Cal.App.3d at p. 697), who participated in the event in question (Cadena v. Superior Court (1978) 79 Cal.App.3d 212, 220), who "acted in concert" with the arresting officer or whose "actions are inextricably intertwined" with the primary officer involved in the incident (Dell M. v. Superior Court (1977) 70 Cal.App.3d 782, 787), and the partner of the primary officer who is present and witnessed the fracas (Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 828-829). The Supreme Courts decision in People v. Memro (1985) 38 Cal.3d 658, 686-687, cited the above decisions with approval. The court in Memro commented that where supported by the declaration of a plausible theory of defense, discovery is available for the partner of the officer who is assertedly the victim of the defendants misconduct or who had the contact with the defendant. (Ibid.)
The decision in People v. Memro, supra, 38 Cal.3d at page 685, was overruled concerning one aspect of the determination of prejudice, as is explained in footnote 2 on page 181 in the decision in People v. Gaines (2009) 46 Cal.4th 172 (Gaines).
In this instance, there is no dispute that the deputies were partners and that Deputy Zollo acted as backup during appellants detention and arrest. In the role of a backup officer, Officer Zollo would have witnessed what went on between appellant and Deputy Bates preceding the arrest. Thus, if Deputy Bates had engaged in fabrication, Deputy Zollo necessarily would have been a party to the fabrication, or at least would have failed to report the fabrication. As asserted by trial counsel in his declaration, the defense could anticipate that Deputy Zollo, Deputy Batess partner, would be called as a percipient witness at trial and possibly at the other pretrial proceedings. It could also anticipate that Deputy Zollo would support Deputy Batess version of the events as set out in the arrest report and that the deputy would be uncooperative concerning discussing the case pretrial with the defense. Consequently, trial counsels declaration supported the discovery of Deputy Zollos personnel records for the same categories of discovery ordered with respect to Deputy Bates.
Also, with respect to Deputy Zollo, for the reasons set forth above in our discussion, the trial court should have ordered discovery of item (4), illegal searches and seizures, as to Deputy Zollo. The trial court also should have ordered one additional category of discovery, item (13)—any claim of complaint relating to the failure to report any act on the part of another member of the Department specified in items (1) through (12). By implication with respect to item (13), trial counsels declaration sets out a theory of defense that Deputy Zollo was a party to any fabrication, or at least failed to report it. Thus, the defense was entitled to discover any prior complaints concerning Deputy Zollos failure to report officer fabrications or the filing of a false report by a fellow deputy.
We order a conditional reversal of the judgment. We remand the cause to the trial court for further proceedings in conformity with the directions and discussion in this opinion. The trial court on remand is to order further Pitchess discovery as to Deputy Bates concerning item (4), illegal searches and seizures. It will also order discovery as to Deputy Zollo concerning items (1), (2), (3), (4), (5), (6), (7), (8), and (13). It will then determine whether appellant is entitled to a new trial pursuant to the procedures and standards set out in People v. Hustead, supra, 74 Cal.App.4th at page 421, as well as pursuant to the recent decision in Gaines, supra, 46 Cal.4th 172, at pages 181 to 185. If the trial court determines that appellant has suffered no prejudice—i.e., that there is no reasonable probability of a different outcome had the evidence been disclosed—the judgment shall be reinstated. (Gaines, supra, 46 Cal.4th at p. 182 ["To obtain relief, then, a defendant who has established that the trial court erred in denying Pitchess discovery must also demonstrate a reasonable probability of a different outcome had the evidence been disclosed"].)
V. The Mooc Review
Appellant requests a review of the existing in camera Pitchess proceedings pursuant to Mooc, supra, 26 Cal.4th 1216. We issued an order requiring that the trial court augment the record of the citizen complaints it examined during the in camera hearing concerning Deputy Bates. The trial court prepared that further appellate record for us. We then reviewed the sealed reporters transcript of the hearing and any citizen complaints reviewed by the trial court at the hearing.
A. The Trial Courts Orders In Camera
This court has determined that only one complaint, No. 119452, properly should have been disclosed. The information in complaint No. 119452 might have been used by the defense to develop evidence at the search and seizure motion to bolster appellants claim that the deputies had no reasonable or probable cause as they did not see the butt of the gun as appellant ran to his aunts front door. The information, if believed by a jury, also potentially impeaches Deputy Batess credibility.
On remand, the trial court shall order the disclosure to the defense of this one citizen complaint, No. 119452. Again, the defense is to be given an opportunity to demonstrate whether the lack of discovery reasonably affected the outcome of the trial as explained in Hustead and Gaines. (Gaines, supra, 46 Cal.4th at pp. 182-183; People v. Hustead, supra, 74 Cal.App.4th at pp. 421-422.) Depending on whether appellant establishes prejudice, he is to be granted a new trial, or the judgment shall be reinstated.
B. The Request for Review of the Unrelated Pitchess Discovery
On appeal, appellant also requests that this court conduct a review pursuant to the decision in Mooc with respect to the Pitchess discovery in Strider, case No. TA087989. Appellant cites no authority to support the request. Appellate counsel did not augment the record with the reporters transcripts of the proceedings of May 24, 2007, and June 1, 2007, concerning the renewed motion for Pitchess discovery. There is, of course, no record of the reasons for the trial courts refusal to lift the protective order in the unrelated case so as to permit appellant to challenge the lack of discovery.
Evidence Code section 1045, subdivision (e), provides: "The court shall, in any case or proceeding permitting the disclosure or discovery of any peace or custodial officer records requested pursuant to Section 1043, order that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law." In Alford v. Superior Court (2003) 29 Cal.4th 1033, the court held that section 1045, subdivision (e), requires the court to impose a protective order providing that the "records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law." It explained that the Legislature intended by that subdivision to limit disclosure of information in a peace officers personnel records to only information relevant to the defense on a showing of materiality in a particular case. (Alford v. Superior Court, supra, at p. 1042.)
The decision in Chambers v. Superior Court (2007) 42 Cal.4th 673 (Chambers) does not assist appellant. Admittedly, in that case, the Supreme Court took judicial notice of the record in an unrelated case. (Id. at p. 678, fn. 4.) But the decision in Chambers was limited to addressing the issue of whether the same defense attorney may use the derivative results of an investigation he has previously conducted for one client when he once again obtains the same discovery concerning the same police officers. The Chambers court held that the Evidence Code section 1045, subdivision (e), protective order does not require the attorney to conduct a repetitive investigation concerning two disclosures. (Chambers, supra, at p. 682.)
The Chambers court said: "The section 1045(e) protective order is designed to ensure that disclosure of confidential information is limited to the proceeding in which the disclosure is ordered. Once a subsequent defendant obtains that same information under a valid Pitchess order, there is little justification for precluding review of derivative information. As the Court of Appeal observed, the second `litigant obtains nothing beyond that which the Pitchess statutory scheme contemplates he is able to obtain, and counsel for the first Pitchess litigant `has not permitted the information to be used for any court proceeding in which a Pitchess relevance determination has not been made." (Chambers, supra, 42 Cal.4th at p. 682.)
Neither the decision in Mooc nor that in Chambers authorizes this court to conduct its own in camera review in an unrelated case so as to determine the adequacy of the disclosure in a case on appeal. Moreover, even if such a review is authorized in light of Evidence Code section 1045 subdivision (e)s provisions, appellant has not articulated a sufficient legal theory to permit the review. The appellate record is also inadequate to demonstrate that appellant was entitled to have the trial court or this court review the unrelated Pitchess discovery proceedings so as to demonstrate entitlement to further discovery.
We decline appellants request to take judicial notice of the Pitchess discovery in Strider.
DISPOSITION
The judgment is conditionally reversed, and the matter is remanded with the following directions. Following remand, and consistent with the views expressed in this opinion, the trial court is required to order further discovery as to Deputy Bates concerning item (4), illegal searches and seizures. It must also order discovery as to items (1), (2), (3), (4), (5), (6), (7), (8), and (13) as to Deputy Zollo. The trial court will then conduct an in camera inspection for the requested information from the personnel records of the deputies. If the trial courts inspection on remand reveals no relevant information, the trial court must reinstate the judgment in its entirety. If the inspection reveals relevant information, the trial court must order disclosure, allow appellant an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability the outcome would have been different had the information originally been disclosed. In the absence of a showing of prejudice, the judgment should be reinstated. With respect to the failure to disclose complaint No. 119452 as to Deputy Bates, the trial court is directed to give appellant an opportunity to investigate to determine whether appellant has suffered any prejudice from the failure to disclose this complaint prior to trial. If there is a reasonable probability that the outcome would have been different had the information been disclosed, he is entitled to a new trial. In the absence of prejudice, the judgment shall be reinstated.
We concur:
DOI TODD, Acting P. J.
CHAVEZ, J.