Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA072362, Bruce F. Marrs, Judge.
Tracy J. Dressner, under appointment by the Court of Appeal and the California Appellate Project, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and John R. Gorey, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Appellant Jimmy Renne Garcia was charged and convicted of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a).) As a second-strike offender, he was sentenced to a total of eight years imprisonment. (See Pen. Code, §§ 1170.12, subds. (a)-(d) and 667, subds. (b)-(i).) This is his second appeal.
In his first appeal, appellant contended the trial court improperly denied his motion for discovery of the personnel records of a number of law enforcement officials, brought under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We concluded the trial court erred in denying the Pitchess motion as it related to the two deputies who arrested appellant and appeared as witnesses at his trial -- Los Angeles County Sheriff’s Deputies Charles McDaniel and Jose Garcia. Accordingly, we conditionally reversed and remanded, instructing the trial court to review the deputies’ personnel records, provide appellant with an opportunity to develop any relevant evidence, and, if appellant demonstrated “a reasonable probability that the outcome of the trial would have been different had the discovered evidence been admitted,” order a new trial.
After remand, the trial court identified pertinent information in the personnel files of both deputies and held a hearing to determine whether the evidence established a reasonable probability of a different outcome at trial. Two witnesses provided declarations concerning interactions with Deputy McDaniel. After reviewing the evidence, the court concluded appellant had failed to meet his burden.
Appellant seeks a new trial, raising two arguments in support of his claim of error. First, he attacks our original disposition, contending that the trial court should have been instructed to order a new trial once it located pertinent information in the deputies’ personnel files, without further proceedings or proof of prejudice. Second, he contends the trial court’s finding that the defense failed to demonstrate a reasonable probability of a different outcome was not supported. We disagree that the erroneous denial of a Pitchess motion and the subsequent discovery of pertinent documents in the personnel records automatically compel reversal and a new trial. We further conclude that the evidence withheld from appellant and revealed after remand was insufficient to establish a reasonable probability of a different outcome at appellant’s trial. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Evidence at Trial
At trial, Deputies McDaniel and Garcia testified to the same essential facts. On September 19, 2005, at approximately 6:30 a.m., the deputies were part of a team observing a taco stand on Amar Road in La Puente. The taco stand was chosen for surveillance because there had been reports of drug dealing at that location. From their observation point across the street, the deputies spotted appellant sitting at an outside table. A man walked up to appellant. After a brief conversation, appellant reached inside a crumpled piece of paper lying on the table in front of him and took something out, which he gave to the man. The man gave appellant money. After the exchange, the man placed the item in his mouth. Another similar transaction took place a few minutes later.
The two men were detained by other deputies stationed down the street. No drugs were found in their possession. At the time of his arrest, appellant had $15.08 in his possession.
The deputies crossed the street to confront appellant. As they were doing so, a man rushed up to appellant and told him the police were down the street, making arrests. Appellant took something from the crumpled piece of paper on the table and put it in his mouth. He then got on a bicycle and began to ride away, pulling a cigarette pack from his pocket and throwing it on the ground as he rode. The deputies retrieved the pack and found a crystalline substance which, after testing, proved to be .90 grams of methamphetamine.
After the deputies detained appellant, he admitted having sold narcotics in the past and being “stupid” and “messing” or “screwing up,” but denied selling drugs that day. Deputy McDaniel asked him what was in the cigarette pack he had discarded. Appellant initially said “cigarettes,” and then said they were not his.
Appellant was initially detained by other deputies at the scene.
B. Prior Appeal
In his prior appeal, appellant contended, among other things, that the trial court erred in denying his Pitchess motion seeking discovery of relevant records in the personnel files of a number of law enforcement officials. In support of the motion, appellant denied possessing the drugs found in the cigarette pack and accused the deputies of “falsifying their report regarding observation[s] . . . at the crime scene.” The trial court denied the motion.
After review, we concluded that with respect to the deputies who had testified, appellant had met his burden as outlined by the Supreme Court in Warrick v. Superior Court (2005) 35 Cal.4th 1011. Specifically, we found that appellant’s moving papers presented a “plausible scenario” by describing a factual set-up that “might or could have occurred” and represented “an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges.” (Id. at p. 1026.) Appellant was, therefore, entitled to an in camera review by the trial court of the deputies’ personnel records to determine whether there had been prior reports or accusations of making false arrests, planting evidence, fabricating incident reports or probable cause, or committing perjury. By opinion and order dated April 18, 2007, we remanded and instructed the trial court to conduct in camera proceedings to review the pertinent personnel records. If the review revealed discoverable information, the court was to “disclose the information to the defense and provide it with an opportunity to develop any evidence.” If appellant could demonstrate “a reasonable probability that the outcome of the trial would have been different had the discovered evidence been admitted,” the court was to order a new trial. If the in camera examination “fail[ed] to lead to admissible evidence that the court believe[d] would have established a reasonable probability of a different outcome,” the court was to reinstate the original judgment.
C. Post-Appeal Proceedings
After remand, the court conducted an in camera hearing at which a representative from the Sheriff’s Department produced reports of complaints or incidents involving the two deputies encompassing the period from May 2000 to May 2005. The court’s review of these records uncovered one pertinent prior complaint or incident involving Deputy Garcia and two involving Deputy McDaniel. The court provided the information to defense counsel.
The representative chose those dates because she erroneously believed the incident involving appellant occurred in May, rather than September, 2005.
After an investigation, the defense filed a motion for a new trial, submitting two declarations regarding Deputy McDaniel. The first was from Jorge Torres, who had been with his friend, Rene Eaton, in 2001 when Eaton was arrested by Deputy McDaniel. On the day of the arrest, Torres had helped Eaton move a travel trailer owned by another friend, Arnold Casillas, from property owned by Eaton’s family. Eaton wanted Casillas’s trailer off the property because earlier that day, he had noticed Casillas sitting in the back of Deputy McDaniel’s patrol car as if under arrest. After helping Eaton move the trailer and unload its contents, Torres went to use the bathroom. Deputy McDaniel burst in and accused Torres of running into the bathroom, flushing drugs down the toilet, and being under the influence of methamphetamine -- all of which Torres denied. Deputy McDaniel arrested Eaton -- but not Torres -- shortly thereafter. Torres denied ever using illegal drugs and also said he had never observed Eaton under the influence of drugs.
The complaint against Deputy Garcia was an allegation of planted narcotics made by the mother of the arrested suspect, whom the court described as “n[ot] a percipient witness.” Defense counsel was apparently unable to locate the complainant.
The declaration did not state why Eaton had been arrested. In its opposition to the motion, the prosecution established that in May 2001, Eaton pleaded guilty to possession of a controlled substance and being under the influence of a controlled substance.
The second declaration was from Michael Alarcon (Alarcon). He stated that in 2002, he had been out driving with his brother David Alarcon (David). They were pulled over by Deputy McDaniel. Deputy McDaniel searched Alarcon, who was on probation, and put him in the patrol car. After doing the same with David, Deputy McDaniel picked up a bag containing white powder from the floor of the patrol car and asked Alarcon what it was. Alarcon denied the bag was his, but Deputy McDaniel insisted it was and claimed that Alarcon had white powder all over his mouth, which Alarcon also denied. On the way to the station, Deputy McDaniel told Alarcon that he knew Alarcon’s mother had filed a complaint against him.
The prosecution established that Alarcon pled no contest to possession of a controlled substance in January 2002.
At the hearing on the motion for a new trial, appellant’s attorney explained Alarcon was awaiting trial for special circumstances murder and had been advised by his counsel not to subject himself to cross-examination. Counsel further reported that Torres had moved to New Mexico and had expressed an unwillingness to travel to California to testify. During the hearing, appellant’s counsel also brought to the court’s attention a 2007 news article indicating that a judge had, at the request of the prosecution, dismissed a criminal case in which Deputy McDaniel had appeared as a witness, “after evidence surfaced that appeared to contradict [the deputy’s] testimony . . . .”
Appellant had previously submitted the article as an exhibit to his post-appeal renewal of his Pitchess motion, but had not attached it to the motion for new trial.
After reviewing the evidence and hearing argument, the court acknowledged that the defense bore the burden “to demonstrate a reasonable probability that the outcome of the trial would have been different had that evidence been admitted.” With respect to the potential testimony of Torres and Alarcon, the court observed that “both of them, from the information submitted by the People, entered a plea of guilty or no contest to the charges, despite the claim that [Deputy McDaniel] fabricated and planted the evidence. That certainly would call into question any allegations in front of a jury. [¶ So based on what I have before me, I’m going to find the defense has not carried their burden of proof by demonstrating a reasonable probability that the outcome would have been different.” Accordingly, the court denied the motion for a new trial and reinstated the original judgment. This appeal followed.
With respect to the Torres declaration, the court was presumably referring to Eaton, the only person described in the incident who was arrested. (See fn. 5, supra.)
DISCUSSION
A. Prejudice
Appellant contends that once it became clear the deputies’ personnel files contained discoverable evidence relevant to his allegation of fabricating evidence, the trial court should have immediately ordered a new trial, instead of requiring appellant to develop the evidence and establish a reasonable probability that the outcome of his trial would have been different. We disagree.
The standard followed by the trial court was set forth in our prior opinion. There, we expressly directed the court to order a new trial only if appellant could demonstrate “a reasonable probability that the outcome of the trial would have been different had the discovered evidence been admitted.” In imposing this standard, we cited People v. Hustead (1999) 74 Cal.App.4th 410 (Hustead), in which the court similarly held that “the proper standard of analysis regarding whether a defendant was prejudiced from the denial of a discovery motion is to determine if there was a reasonable probability that the outcome of the case would have been different had the information been disclosed to the defense.” (Id. p. 422.) The court in Hustead based its decision in part on People v. Memro (1985) 38 Cal.3d 658, 684, in which the Supreme Court said: “It is settled that an accused must demonstrate that prejudice resulted from a trial court’s error in denying discovery.” (See Hustead, supra, 74 Cal.App.4th at p. 419.) The court in Hustead also relied on People v. Marshall (1996) 13 Cal.4th 799, 842, in which the defendant sought access to a witness’s correctional records in order to establish that the witness had psychiatric problems that cast doubt on his credibility. Assuming the witness’s file contained such evidence, the Supreme Court saw “no reasonable probability the outcome of this case would have been different had [the file] been disclosed to the defense [citation]” or that the defendant suffered prejudice “as required by People v. Memro, supra, 38 Cal.3d at page 684 . . . .” (People v. Marshall, supra, 13 Cal.4th at pp. 842-843; see Hustead, supra, 74 Cal.App.4th at pp. 421-422; see also Cal. Const., art. VI, § 13 [“No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”].)
As both sides acknowledge, the Supreme Court recently granted review in a case raising the issue whether outright reversal or remand for a showing of prejudice is the appropriate remedy where a Pitchess motion has been erroneously denied. (People v. Gaines (Aug. 29, 2007, B192177) [nonpub. opn., rev. granted Nov. 28, 2007, S157008].) The Supreme Court may elect to clarify or revise the views expressed in People v. Memro, relied on by this court and the court in Hustead. In any event, our opinion on this issue remains law of the case.
B. Adequacy of Appellant’s Showing
Where the trial court erroneously denies a Pitchess motion and the matter is remanded, the court is obliged to determine after remand whether the personnel records contain pertinent information and whether that information leads the defense to admissible evidence favorable to the defendant. (Hustead, supra, 74 Cal.App.4th at p. 423.) Evidence is favorable to the defendant if it is “evidence that the defense could use either to impeach the state’s witnesses or to exculpate the accused.” (People v. Ochoa (1998) 19 Cal.4th 353, 473.)
Here, the information belatedly provided to the defense led to two witnesses -- Torres and Alarcon -- who had had negative interactions with Deputy McDaniel in the recent past. Torres said the deputy jumped to a faulty conclusion about the possible presence of drugs from innocent actions. But Deputy McDaniel did not arrest Torres and he was never charged with any crime. His testimony would have had minimal relevance to the factual issue the defense hoped to raise at trial, viz., whether Deputy McDaniel had given truthful testimony concerning appellant’s possession of drugs. Alarcon, on the other hand, said that drug evidence had been planted and used to justify his arrest. His testimony was, therefore, relevant to Deputy McDaniel’s credibility.
As we have said, however, proof that the erroneous denial of a Pitchess motion led to the suppression of relevant evidence does not automatically lead to reversal of the judgment and a new trial. There must also be prejudice. The court in Hustead explained that for purposes of determining prejudice there is no substantive difference between a case in which the trial court improperly denied discovery that would have led to admissible evidence and those cases in which the court erroneously excluded admissible evidence. (Hustead, supra, 74 Cal.App.4th at p. 422.) In either case, “the proper standard of review is whether there is a reasonable probability that there would have been a different result had the evidence been admitted.” (Ibid.) In reaching this conclusion the court relied on People v. Fudge (1994) 7 Cal.4th 1075, in which the Supreme Court explained that where exclusion of evidence does not impair an accused’s due process right to present a defense, but represents “‘only a rejection of some evidence concerning the defense[,]’ . . . the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836 . . ., and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24 . . .).” (People v. Fudge, supra, 7 Cal.4th at p. 1103, quoting In re Wells (1950) 35 Cal.2d 889, 894.)
To establish prejudice under the Watson standard, “‘[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. . . . The defendant must show that there is a reasonable probability that, but for [the] errors, the result of the proceeding would have been different.’” (People v. Ledesma (1987) 43 Cal.3d 171, 217-218, quoting Strickland v. Washington (1984) 466 U.S. 668, 693-694.) “A ‘reasonable probability’ is one sufficient to ‘undermine[] confidence in the outcome.’” (People v. Ochoa, supra, 19 Cal.4th at p. 473, quoting U.S. v. Bagley (1985) 473 U.S. 667, 678; accord People v. Hayes (1992) 3 Cal.App.4th 1238, 1245, quoting People v. Hayes (1990) 52 Cal.3d 577, 612 [prosecution’s failure to disclose impeachment evidence requires reversal “‘“if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial”’”].)
Respondent contends no prejudice resulted from the improper failure to reveal the information in the personnel files because Deputy McDaniel’s testimony was corroborated in all its essential details by Deputy Garcia. In general, impeachment evidence is material and its omission or suppression undermines confidence in the outcome of the trial “‘where the witness at issue “supplied the only evidence linking the defendant[] to the crime,” [citations], or where the likely impact on the witness’s credibility would have undermined a critical element of the prosecution’s case [citation].’” (People v. Salazar (2005) 35 Cal.4th 1031, 1050, quoting U.S. v. Payne (2d Cir. 1995) 63 F.3d 1200, 1210.) “‘In contrast, a new trial is generally not required when the testimony of the witness is “corroborated by other testimony.”’” (People v. Salazar, supra, 35 Cal.4th at p. 1050, quoting U.S. v. Petrillo (2d Cir. 1987) 821 F.2d 85, 89.)
The evidence uncovered by the defense and presented to the court in its motion for a new trial could conceivably have damaged Deputy McDaniel’s credibility with the jury. However, defense counsel presented no basis to distrust the other key prosecution witness. Deputy Garcia testified that he was with Deputy McDaniel prior to appellant’s detention; that he, too, observed appellant drop the cigarette pack; and that when the two of them retrieved it, they found methamphetamine inside. Deputy Garcia was also present during appellant’s questioning, when appellant contradicted himself in a way that suggested guilty knowledge, first acknowledging dropping the pack and then denying the cigarettes were his. Admission of Alarcon’s testimony would not have undermined Deputy Garcia’s testimony, which was itself sufficient to support the verdict. The presence of this corroborating evidence establishes the harmlessness of the error. (People v. Salazar, supra, 35 Cal.4th at p. 1050.) We, therefore, agree with the trial court’s conclusion that appellant failed to establish a reasonable probability that but for the exclusion of the evidence obtained following the Pitchess inquiry, the outcome of appellant’s trial would have been different.
Although Deputy Garcia’s personnel file contained a complaint of fabrication from the mother of a defendant, according to the court, the complainant was not a percipient witness and, in any event, could not be located. There is thus nothing in the record to suggest the Pitchess inquiry resulted in the discovery of admissible evidence tending to impeach Deputy Garcia.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.