Opinion
F052244
9-4-2008
THE PEOPLE, Plaintiff and Respondent, v. STEVEN ANTHONY MOLINA, Defendant and Appellant.
Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
The district attorney charged Steven Anthony Molina with the commission of felonies on May 16, 2003. At an in camera hearing, he sought disclosure of information relevant to the issue of dishonesty from the personnel documents of Bakersfield Police Officers Gary Carruesco and William Hughes. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) At the hearing, the trial court granted disclosure of information from some documents and denied disclosure of information from other documents.
On appeal from the ensuing judgment of conviction after trial by jury, Molina requested review of the trial courts Pitchess rulings. Since the personnel documents at issue were missing from the confidential record, we ordered the trial court to hold a new Pitchess hearing to prepare a confidential augmentation adequate for appellate review. Our review of the confidential augmentation showed that the trial court declined to order disclosure of information from two documents, one involving Officer Carruesco, the other involving Officer Hughes, and that information from both documents was relevant to the issue of dishonesty. Since those rulings constituted an abuse of discretion, we reversed the judgment and ordered a new trial. (People v. Molina (Feb. 28, 2006, F045547) [nonpub. opn.].)
Instead of disclosing that information to the defense, the trial court held yet another Pitchess hearing and ordered disclosure to the defense of some information about Officer Carruesco but denied disclosure to the defense of any information at all about Officer Hughes. On appeal after his second trial by jury, Molina argues that the trial courts failure to comply with our original opinion requires reversal. The Attorney General instead requests that we review the documents at issue to determine if there was error and, if so, to determine if the error was prejudicial. Our review of the documents at issue shows that there was error, but for two reasons we cannot determine if the error was prejudicial. First, our prior opinion adjudicated a discovery issue, not an evidentiary issue, so neither we nor the parties can possibly determine the impact, if any, of the trial courts abuse of discretion in withholding from Molina the discovery our prior opinion found to be "indisputably relevant to the issue of dishonesty." Second, we are authorized to order the trial court to comply with our former opinion but not to modify our prior opinion. So the sole remedy available to us is to reverse the judgment and order a new trial.
BACKGROUND
On July 18, 2003, the district attorney filed an information charging Molina with two counts of attempted murder with premeditation and deliberation, two counts of assault with a semiautomatic firearm, and one count of discharge of a firearm at an occupied vehicle, alleging in each count use of a firearm and commission of the offense for the benefit of a criminal street gang, and alleging in one of the assault counts personal infliction of great bodily injury. (Pen. Code, §§ 186.22, subd. (b)(1), 187, subd. (a), 189, 245, subd. (b), 246, 664, 12022.5, subd. (a)(1), 12022.7, subd. (a), 12022.53, subds. (c), (d), (e)(1).)
On February 26, 2004, the trial court granted Molinas motion for a Pitchess hearing for disclosure of information from police personnel documents on the issue of dishonesty but delayed the requisite hearing to allow time for the two police officers whose personnel documents were at issue, Officer Carruesco and Officer Hughes, to file a petition for writ relief here. (Cf. Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1017-1018.) On March 1, 2004, we denied the petition. (Bakersfield Police Officer Gary B. Carruesco et al. v. Superior Court (Molina) (F045001).)
On March 2, 2004, the trial court held a Pitchess hearing, granted disclosure of information from some personnel documents, and denied disclosure of information from other personnel documents. On April 20, 2004, a jury found Molina guilty of discharge of a firearm at an occupied vehicle, found him guilty of both counts of assault with a semiautomatic weapon, and found the criminal street gang allegations in each count true but otherwise found him not guilty and found the allegations not true.
On May 14, 2004, Molina filed a notice of appeal from the judgment of conviction. On April 21, 2005, his case was fully briefed. On May 10, 2005, the confidential reporters transcript of the Pitchess hearing was filed, showing that the trial court declined to order disclosure of information from two documents, one involving Officer Carruesco, the other involving Officer Hughes, but the confidential record omitted both of those documents. That record precluded the meaningful appellate review to which Molina was entitled, so we filed an order on November 14, 2005, directing the trial court to hold a new Pitchess hearing, to correct the deficiencies in the record, and to augment the record with the missing documents. (People v. Mooc (2001) 26 Cal.4th 1216, 1228, 1231.)
On January 3, 2006, the confidential augmentation was filed. On February 28, 2006, we reversed the judgment: "Our review of the confidential record of the original in camera hearing showed that the trial court declined to order disclosure of information from two documents, one involving one officer, the other involving the other officer, but that the confidential record omitted both of those documents.... `A motion for discovery of peace officer personnel records is "addressed solely to the sound discretion of the trial court." (People v. Breaux (1991) 1 Cal.4th 281, 311, quoting Pitchess, supra, 11 Cal.3d at p. 535.) The confidential augmentation includes information that is not only indisputably relevant to `the issue of dishonesty but that is also conspicuously absent from the original confidential record. The trial courts ruling withholding disclosure of that information was an abuse of discretion. (See San Jose v. Superior Court (1993) 5 Cal.4th 47, 50-57.) A reasonable probability exists that discovery to the defense of that information `would have led to admissible evidence of sufficient weight to affect the outcome, so reversal of the judgment is required. (People v. Memro (1985) 38 Cal.3d 658, 685.)" (People v. Molina (Feb. 28, 2006, F045547) [nonpub. opn.].) On May 1, 2006, the clerk/administrator of this court issued the remittitur.
Instead of disclosing to the defense the erroneously withheld information and proceeding to trial, however, the trial court held another Pitchess hearing (commencing with eight pages of confidential reporters transcript on June 20, 2006, and ending with four pages of confidential reporters transcript on June 28, 2006). The trial court ordered disclosure to the defense of information about Officer Carruesco but denied disclosure to the defense of any information at all about Officer Hughes. On December 11, 2006, the district attorney filed an amended information charging Molina with two counts of assault with a semiautomatic firearm and one count of discharge of a firearm at an occupied vehicle and alleging in each count commission of the offense for the benefit of a criminal street gang. (Pen. Code, §§ 245, subd. (b), 246, 186.22, subd. (b)(1).) On December 22, 2006, a jury found him guilty as charged and found the criminal street gang allegations in each count true. On January 31, 2007, he filed a notice of appeal from the judgment of conviction. On April 10, 2008, the case was fully briefed.
DISCUSSION
The law governing the appeal now before us is simple and straightforward. "A trial court may not disobey a remittitur, as that would amount to overruling the appellate courts decision, thereby violating a basic legal principle: `Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court. (Auto Equity Sales, Inc. v. Superior Court (Auto Equity) (1962) 57 Cal.2d 450, 455.)" (People v. Dutra (2006) 145 Cal.App.4th 1359, 1362 (Dutra).)
"A remittitur merely `designates the judgment of the appellate tribunal which is authenticated to the court from which an appeal is taken and corresponds to the "mandate" used in the practice of the United States Supreme Court. [Citation.] The interpretation of a remittitur requires that the courts opinion be consulted ... and that meaning given to it which harmonizes with the courts ruling." (Combs v. Haddock (1962) 209 Cal.App.2d 627, 631 (Combs).) After our prior opinion became final, the clerk/administrator of this court sent to "the lower court or tribunal the Court of Appeal remittitur and a file-stamped copy of the opinion or order," as mandated by the applicable rule of court. (Cal. Rules of Court, rule 8.272(b)(1)(B).) "The opinion thus becomes a part of the remittitur [citation], and the ministerial act of issuance of same [citation] cannot control the courts judgment." (Combs, supra, at p. 631.)
"After the certificate of the judgment has been remitted to the court below, the appellate court has no further jurisdiction of the appeal or of the proceedings thereon, and all orders necessary to carry the judgment into effect shall be made by the court to which the certificate is remitted." (Pen. Code, § 1265, subd. (a).) On remand, "the trial court is revested with jurisdiction of the case, but only to carry out the judgment as ordered by the appellate court. The same is true in civil cases. (Code Civ. Proc., §§ 43, 906, 912; see 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 167, p. 413 [criminal and civil rules the same].)" (Dutra, supra, 145 Cal.App.4th at p. 1366.)
At the June 20, 2006, Pitchess hearing after our prior opinion, the assistant city attorney stated that "it seemed to be the general consensus in the Internal Affairs Department that it was probably the Internal Affairs Case 03-01 that the Court [of Appeal] was relying on. Thats as to Officer Carruesco." Quite so. Yet the trial court ordered no disclosure to the defense of any information from that document but instead ordered disclosure to the defense of information from a different document in Officer Carruescos personnel file (Case 03-35). "As to Officer Hughes," the assistant city attorney stated, "I couldnt see anything." Even though information about Officer Hughes in Case 03-02 is indisputably relevant to the issue of dishonesty, the trial court ordered no disclosure to the defense of any information at all about him.
However, our prior opinion noted, first, that our "review of the confidential record of the original in camera hearing showed that the trial court declined to order disclosure of information from two documents, one involving one officer, the other involving the other officer," second, that the "trial courts ruling withholding disclosure of that information was an abuse of discretion," and, third, that a "reasonable probability exists that discovery to the defense of that information `would have led to admissible evidence of sufficient weight to affect the outcome, so `reversal of the judgment is required." (People v. Molina (Feb. 28, 2006, F045547) [nonpub. opn.], pp. 4-5, italics added.)
Congruently, in a brief colloquy just before the Pitchess hearing after our prior opinion, the trial court stated that the purpose of calendaring the matter was "to get the issues as to what it was exactly that the Fifth wanted the Court to order disclosed to the defense regarding the officers, I believe Officer Carruesco and I cant recall the name of the second officer but, according to the Fifth District Court of Appeals [sic], Officer — I guess, according to the Fifth District Court of Appeals [sic], the Court erred in not providing the defense with discovery. [¶] I believe there was one incident as to each officer, is that correct?" The assistant city attorney replied, "Thats my understanding, your Honor," stated her appearance for the record, and, with specificity, elucidated, "Its my understanding there was one item as to each officer." (Italics added.)
As to Officer Carruesco, the trial courts ruling ordering disclosure to the defense of information from Case 03-35 — despite the assistant city attorneys identification of the document at issue as Internal Affairs Case 03-01 — is mystifying. As to Officer Hughes, the trial courts ruling denying disclosure to the defense of any information at all — despite the designation in our prior opinion of the trial courts abuse of discretion as the withholding of "information from two documents, one involving one officer, the other involving the other officer" — is inexplicable. (People v. Molina (Feb. 28, 2006, F045547) [nonpub. opn.], p. 4, italics added, italics added.)
As a practical matter, since our prior opinion adjudicated a discovery issue, not an evidentiary issue, neither we nor the parties can possibly determine the impact, if any, of the trial courts withholding from Molina the discovery our prior opinion ordered. As a legal matter, Molina is entitled to all orders necessary to carry into effect the judgment in our prior opinion. (Snukal v. Flightways Mfg., Inc. (2000) 23 Cal.4th 754, 774, fn. 5; Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455 ["Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction."]; Pen. Code, § 1265, subd. (a).) The sole remedy available to us is to reverse the judgment and order a new trial.
DISPOSITION
The judgment is reversed and a new trial is ordered. (Pen. Code, § 1262.)
The trial court, the prosecutor, and the defense attorney alike are urged to read the entire opinion with care to preclude the avoidable costs and delays of yet more trial and appellate proceedings as to issues already adjudicated on appeal. Of course, new personnel documents, if any, generated since are outside the purview of that adjudication and are subject to new proceedings in the trial court.
WE CONCUR:
Vartabedian, Acting P.J.
Hill, J.