Opinion
F072180
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW NAJERA, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Nicholas M. Fogg, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF150312A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush and Kenneth C. Twisselman II, Judges. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Nicholas M. Fogg, Deputy Attorneys General, for Plaintiff and Respondent.
Judge Bush presided over the August 26, 2014, and September 30, 2014, Pitchess motions; Judge Twisselman presided over the jury trial and sentencing hearing.
-ooOoo-
INTRODUCTION
Appellant/defendant Matthew Najera robbed a store clerk in Bakersfield and escaped. Several hours later, Officers Martin and Sims attempted to contact him because he matched the suspect's description. The officers reported that defendant resisted arrest and fled. A short time later, Officer Messick and Mundhenke attempted to take defendant into custody. They reported that he resisted, but the officers were able to subdue and arrest him. The robbery victim later positively identified defendant.
Defendant was charged with multiple offenses, including robbery and resisting arrest as to Officers Martin and Sims. He was not charged with resisting Officers Messick and Mundhenke. Defendant filed pretrial motions pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) for disclosure of the confidential personnel records of Officers Martin, Sims, Messick, and Mundhenke for complaints about making false reports and excessive force, based on defendant's allegations that he never resisted the officers and they repeatedly beat him for no reason. The superior court found good cause to review Officer Martin's records for complaints of making false reports and excessive force, and Officer Sims' records only for excessive force complaints. After an in camera hearing, the court ordered disclosure of certain information as to Martin and Sims. The court found defendant failed to show good cause as to Officers Messick and Mundhenke, and did not review their records.
After a jury trial, defendant was convicted of robbery with the personal use of a firearm; two counts of felony resisting arrest of Officers Martin and Sims; and possession of a firearm by a violent felon. Defendant was sentenced to the second strike term of 29 years in prison.
On appeal, defendant asks this court to review the entirety of the confidential and sealed records of Officers Martin and Sims, and the superior court's in camera Pitchess hearing, and determine whether the court should have ordered disclosure of additional information as to those officers.
Defendant further contends the court improperly limited the review of Officer Sims's records only to excessive force complaints. He argues his Pitchess motion also set forth good cause to review Officer Sims's records for complaints of making false reports.
Defendant argues the court abused its discretion when it refused to conduct any type of review of the records of Officers Messick and Mundhenke. Defendant argues his Pitchess motion showed good cause to review their records for complaints about false reports and excessive force.
We also address defendant's contention that the matter must be remanded for resentencing based on the recent enactment of Senate Bill 620, which amended the language of the firearm enhancement found true in this case, Penal Code section 12022.53.
All further statutory citations are to the Penal Code unless otherwise indicated.
We remand the matter for the court to consider whether to exercise its discretion under the newly-enacted provisions of section 12022.53, subdivision (h), and to correct the abstract of judgment, and otherwise affirm.
FACTS
The robbery
On August 15, 2013, Guillermina Silva was working by herself at a Herbalife health food supplement store on Columbus Street in Bakersfield. Sometime before noon, Silva was standing outside the store and saw a man walk by. She gave the man a card about Herbalife products and invited him into the store.
Silva testified the man, later identified as defendant, entered the store. Silva could not speak English, and defendant did not appear to understand when she spoke Spanish. Silva presented defendant with English-language literature about the products. Defendant appeared interested and filled out an order form for $200 worth of products, and used the name "Jose Garcia." Defendant asked questions about the order. Silva called a friend on her cell phone, handed the cell phone to defendant, and the friend translated his questions.
Defendant produced a check and said something. Silva thought defendant wanted to cash the check, but she could not understand him. She again called her friend on the cell phone to translate.
After the second cell phone call, defendant asked for water and then to use the restroom. Defendant suddenly took Silva's cell phone from her hand. He produced a small black handgun and pointed it at her. Silva was frightened and tried to tell defendant that she did not have any money. Defendant pushed her into the restroom in the rear of the store and closed the door.
Silva was very scared. She waited for a while in the restroom, and then went back into the store. Defendant was gone, and her purse and cell phone were missing. Her purse contained identification and credit cards. Silva ran outside the store and asked a bystander to call the police.
Silva testified that an officer later showed her two separate photographic lineups. She selected defendant's photograph from the second lineup and identified him as the robber.
The investigation
Around 12:30 p.m., officers from the Bakersfield Police Department responded to Silva's location. Based on their interview with Silva, a dispatch was sent out that described the robbery suspect as a Hispanic male in his 30's, six feet tall with short hair, who had several facial piercings, a tattoo on his upper lip, and a tattoo of lips on his neck, and used a small silver handgun.
Later that day, the police department contacted AT&T and conducted a records check for Ms. Silva's stolen cell phone. This investigation led to the information that the cell phone was being used at a certain address on Alta Vista.
Around 10:00 p.m. that evening, Officer Berumen was on patrol in plainclothes and an unmarked vehicle, and responded to the Alta Vista area in response to the cell phone information. He saw a man standing outside an apartment complex on Alta Vista, and believed the man matched the description of the robbery suspect. Berumen immediately advised patrol units of his observations.
Officers Martin and Sims contact defendant
Bakersfield Police Officers Martin and Sims, with the Career Criminal Apprehension Team, responded to Officer Berumen's dispatch about the possible robbery suspect. They were wearing raid gear with vests that were clearly marked to indicate they were law enforcement officers. Sims parked their vehicle, and they walked toward defendant. The officers did not have any previous knowledge of defendant.
Officer Berumen remained in the area until he saw Officers Martin and Sims arrive, approach defendant, and follow him across the street. Once he saw the officers talking to defendant, Berumen drove away. Berumen did not try to detain defendant, or see any physical altercation or struggle between defendant and the officers.
Officers Martin and Sims called out to defendant, identified themselves as officers, and said they needed to speak with him. Defendant was with an unidentified woman. Defendant turned around, looked at the officers, and ignored their requests to stop. Defendant and the woman crossed the street and went into a café. Defendant was carrying a backpack.
The officers followed defendant inside the café. The officers advised defendant that they were conducting an investigation and they needed to speak with him outside. Defendant said he was not on probation or parole, and he did not want to talk to them.
Officer Martin testified that as he talked to defendant, he believed that he matched the description of the robbery suspect. Both officers knew the suspect had used a small firearm. They decided to detain defendant and escort him from the café for safety reasons. The officers flanked defendant, each held an arm, and escorted him to the sidewalk outside. Martin testified defendant did not have a choice at that point, and he was detained. The woman also went outside with them.
Once they were on the sidewalk, Officer Martin directed defendant to place his hands on top of his head, and that he was going to conduct a search. Martin asked defendant if he had any weapons or dangerous objections that could harm them. Defendant replied that he had a note in his pocket "that he wished to read to me," that "I got it from an attorney or somebody. It has your rights on it. I need to read these to you." The officers believed defendant could have a gun in his pocket, based on the victim's description that the suspect had a small firearm. They told defendant that he could not reach into his pocket.
Defendant resists the officers
Officer Martin testified defendant failed to put his hands on top of his head. Instead, defendant "tensed" his arms, hands, and shoulders, to restrict any movement of his hands above his head. Martin asked defendant to calm down, but defendant did not raise his hands as ordered.
Officer Martin testified that Officer Sims let go of defendant's left arm, and the following happened:
"... I took control of [defendant's] left arm and his right arm and I attempted to place them on his head.... I was asking him to place his hands on top of his head as I was trying to pull his fingers to interlock them behind his head this way in order for me to safely search him .... Once that happened, he actually started to flail both of his arms. And once the flailing began, Officer Sims, once again, took control of [defendant's] left arm, and I attempted to maintain control of his right."
As defendant flailed his arms, he moved his elbow backwards and hit Officer Martin's face. Martin felt the impact of the blow and let go of defendant's right arm. Martin testified:
"At that point [defendant] decided to try to pull away from Officer Sims, who still had control of his left arm. At that point they had stepped down into gutter ... the area separating the asphalt to the street from the
sidewalk. At that time Officer Sims used his body weight and pulled [defendant] backwards, and [defendant] essentially tripped over the curb and fell to the ground."
Officer Sims testified that he did not realize Officer Martin had been hit in the face. Sims ended up in the street with defendant once Martin lost control of him. Sims repeatedly yelled at defendant to stop resisting, but could not gain control over him since defendant was a larger person. Sims used the curb to "essentially trip him and bring him to the ground."
Officers Martin and Sims testified defendant quickly stood up from the street, and started to pull away from Sims. Defendant pulled Sims into the middle of the street, about 10 feet from the sidewalk. Sims used his body weight and pulled defendant to the ground, but defendant continued to resist.
Officer Martin retrieved his collapsible baton and repeatedly ordered defendant to stop resisting. Defendant failed to comply. Martin used the baton and hit defendant's lower right leg, and again ordered him to stop. Defendant still failed to comply, and actually stood up as Officer Sims continued to hold his arm.
Officer Martin testified that defendant reached for the same pocket that he previously indicated contained a note. Martin was again afraid that defendant was reaching for the small gun described by the victim. Martin used the baton and hit defendant's right arm two to three times. At the same time, Officer Sims pulled defendant back to the ground.
Officer Martin testified that defendant again managed to stand up, and Officer Sims again pulled him down to the ground. As the struggle continued, the officers repeatedly ordered defendant to stop resisting and put his hands behind his back, but defendant did not comply.
Officer Martin testified that Officer Sims managed to pull defendant toward the curb. Sims and defendant tripped over the curb and fell onto the sidewalk. Defendant was on his back and Sims was on top of him, and held defendant on the ground.
Officer Sims testified that he was on top of defendant and tried to gain control of defendant's right hand. Defendant reached out and tugged on his gun holster. Sims looked down and saw defendant's left hand pull the handle of his service weapon. Sims was afraid defendant was going to release the holster lock and remove his weapon. Sims let go of defendant's right hand, and grabbed his service weapon to make sure defendant did not remove it from his holster. Sims testified that he yelled to Officer Martin, "[H]e is going for my gun."
Officer Martin testified that defendant "actually reached up and grabbed Officer Sims' holster or his firearm, and he started trying to pull that firearm out of the holster." Martin heard Sims say, "He is going for my gun."
Officer Martin was afraid defendant was going to get Officer Sims's gun. Martin testified he considered shooting defendant, but Sims was completely on top of him, and between Martin and defendant. In addition, Martin's Taser gun and his radio had fallen out of his raid vest during the struggle.
Officer Martin again used his baton and hit defendant's forehead. In response, defendant removed his hands from Officer Sims's firearm and raised his hands to protect his head, and again ignored the officers' repeated orders to stop resisting. Martin saw Sims reach for his firearm to ensure that defendant had not released the holster lock.
Defendant escapes
Officer Martin testified defendant was still lying on his back, and Officer Sims was vulnerable. Martin intended to hit defendant's right leg with his baton. As he was about to do so, defendant moved his body so that Sims also moved, and their legs overlapped. When Martin delivered the baton blow, he accidentally hit Sims's leg.
Officer Sims testified that once he gained control of his service weapon, defendant used his feet to push him away. Sims's body turned, and then he felt extreme pain on his right knee, and told Officer Martin "that he hit me" in lower leg, behind his knee.
Officer Sims rolled off defendant because of the pain. Defendant got up and ran into an alley. Defendant still had his backpack.
Officer Sims had no feeling in his lower leg and could not stand up. Officer Martin ran after defendant, who went through the alley and then turned into a dirt lot. Martin testified that defendant reached into that same right pocket and tossed a silver item toward a tree. Defendant kept running and threw away the backpack.
Officer Martin testified that he gave up the pursuit and lost sight of defendant because Officer Sims called out that he could not get up. Martin returned to Sims, who had already used his hand-held radio to advise other officers about the pursuit and defendant's location.
Defendant was charged with resisting both Officers Martin and Sims, who testified at trial. Defendant's pretrial Pitchess motion sought disclosure of any complaints against Martin and Sims pertaining to false reports and excessive force. The court agreed to review Martin's records for false reports and excessive force, and Sims's records only for excessive force, and ordered disclosure of certain information.
Apprehension of defendant
Officers Sims and Martin remained at the scene of the original encounter with defendant, and did not participate in his arrest.
Officers Christopher Messick and Aaron Mundhenke responded to the dispatch about Officer Martin's initial pursuit of the robbery suspect. At the corner of North Inyo and Water Street, the officers saw someone who matched the suspect's description. He was crouched behind a trashcan and a chain link fence.
Officer Mundhenke testified he illuminated the man with his flashlight, yelled that he was a police officer, and ordered the man to get on the ground. The man, later identified as defendant, failed to comply and Mundhenke again shouted out these orders.
Instead of getting down, defendant stood up and walked to Officer Mundhenke, who grabbed defendant's left arm. Mundhenke testified he "assisted the defendant to the ground, he was in the face-down position with his chest on the ground. I still was able to maintain control of his left arm. I ordered him to place his right hand behind his back." Defendant did not comply. Mundhenke testified that he used his body weight with both knees to put defendant on the ground. Officer Messick arrived to assist. Defendant was placed in handcuffs.
Defendant was not charged with resisting Officers Messick and Mundhenke. Only Mundhenke testified at trial. As explained above, defendant's Pitchess motion also sought disclosure of the records of Messick and Mundhenke for false reports and excessive force. The court denied the Pitchess motion as to these two officers, did not review their records, and held defendant failed to show good cause. --------
Recovery of the gun and backpack
A .25-caliber silver semiautomatic handgun with a black handle was found in the area where Officer Martin saw defendant toss a silver item from his pocket. There was one live round in the gun's chamber.
The backpack was also found in the area. The backpack contained items that had been in Ms. Silva's purse, along with an AT&T cell phone and one .25-caliber bullet.
Defendant's injuries
The defense introduced photographs of defendant that were taken at the hospital after his arrest. The photographs showed injuries on defendant's forehead and leg, blood on his back, and possibly a bloody nose and lip.
Officer Martin testified he never saw defendant after he was arrested, he did not transport defendant to the hospital, he did not search defendant's person or clothing, and he did not know what happened to defendant at the hospital.
Officer Martin testified he hit defendant with his baton between eight and 10 times, and it was reasonable to believe he inflicted the leg and forehead injuries that were shown in the photographs. He did not know if Officer Sims inflicted any injuries on defendant during their struggle.
The defense did not introduce medical records or other evidence about the nature or extent of defendant's physical condition when he was arrested.
PROCEDURAL HISTORY OF PITCHESS MOTIONS
Defendant's appellate issues address the court's decisions on his Pitchess motions for disclosure of the personnel records of Officers Martin and Sims, who initially confronted defendant and struggled with him, and Officers Messick and Mundhenke, who took defendant into custody.
We thus turn to the procedural history of defendant's Pitchess motions.
The complaint
On August 19, 2013, a felony complaint was filed against defendant, charging him with robbery and one count of resisting arrest by means of threats or violence as to Officer Martin in violation of section 69. He was not charged with resisting arrest as to Officers Sims, Messick and Mundhenke.
On November 8 and 12, 2013, the preliminary hearing was held. Officers Sims and Martin testified about their struggle with defendant, consistent with their later trial testimony. Officers Messick and Mundhenke did not testify.
On November 14, 2013, the information was filed, charging defendant with robbery, firearm offenses, and two counts of resisting by means of threats or violence as to both Officers Martin and Sims, in violation of section 69; and one count of resisting Sims and causing serious bodily injury. He was not charged with resisting Officers Messick and Mundhenke.
First Pitchess motion
On July 29, 2014, Tony Lidgett, defendant's retained counsel, filed a Pitchess motion for disclosure of the personnel records for Officers Martin and Sims (who initially detained defendant) and Officers Messick and Mundhenke (who subsequently arrested him), for all complaints, investigations, and discipline pertaining to "false testimony and/or lying on reports, and/or use of excessive force or violence."
Mr. Lidgett filed a supporting declaration that asserted Officers Martin and Sims forcefully detained defendant when they initially encountered him in the café; they forcefully escorted him outside; and they slammed him to the ground and beat him with their batons, while yelling at him to quit resisting. Defendant tried to comply with their orders, but they continued to beat him with their batons. Defendant tried to get up and take cover because he feared for his life, but he was hit on the head with a baton with such force that he lost consciousness. When he woke up, they were still beating him. Sims continuously punched, kicked, and slammed him to the ground, and Martin repeatedly hit him with his baton. Defendant again tried to escape, Martin hit Sims with his baton, and defendant ran away.
Mr. Lidgett further declared that defendant ran to a house for help, but the residents refused. The police arrived and defendant tried to surrender. Unidentified officers beat him with their batons, placed him in handcuffs, and put him in their patrol car. The officers then decided to take him out of the patrol car, and forcefully pulled him out. One officer put defendant in a wristlock "in a sadistically abusive effort to inflict more pain and injuries" on him. An officer told defendant to stop making a scene. Defendant threw himself into the patrol car to avoid further injuries.
Mr. Lidgett alleged these same officers asked for his name. Defendant asked for an attorney. They yelled that he did not have the right to an attorney. Defendant lost consciousness from his injuries, and woke up as an officer stuffed "ammonia in his nose and mouth." An ambulance arrived and one officer asked who called for it. Another officer said he did. The first officer said that he should not have done that because "this is 'gonna make us look bad.' " The first officer said he would take care of it, and told the EMT personnel that defendant refused medical attention.
Mr. Lidgett declared that unnamed officers later took defendant to the hospital, but pulled defendant out of the patrol car by his legs, "even though one was broken." Defendant received staples on a deep head laceration, and x-rays showed a severe fracture of his leg.
Mr. Lidgett alleged that Officers Martin and Sims lied at the preliminary hearing about their initial detention of defendant, and Officers Mundhenke and Messick "denied [defendant] the medical treatment he needed" and used excessive force to arrest him.
The City's opposition
On August 7, 2014, the Bakersfield City Attorney (the City) filed opposition as custodian of records for the Bakersfield Police Department. The City stated that defendant showed good cause to review Officer Martin's records only for complaints about dishonesty, and objected to the review of the other officers' files for any purpose because defendant failed to show good cause.
The City also asserted that defendant's motion was defective because defense counsel failed to attach a copy of the police report, as required by Evidence Code section 1046.
The court's hearing
On August 26, 2014, the court held a hearing on defendant's first Pitchess motion. Defense counsel acknowledged the motion was defective, and asked for a continuance so he could file a corrected motion unless the City was willing to waive the defect.
The court denied defendant's request for a continuance, and stated it would conduct an in camera review of Officer Martin's records only for dishonesty, because he was the only officers who wrote a report. It declined to review the records of the other officers for any purpose. Counsel said he would file a second Pitchess motion to correct the evidentiary defects.
The court's ruling
After conducting an in camera hearing, the court advised the parties that it was not going to disclose any information.
Second Pitchess Motion
On August 29, 2014, defense counsel filed a second Pitchess motion, and again sought discovery of records for Officers Martin, Sims, Messick and Mundhenke for all complaints, investigations, and discipline about "excessive force or violence." The second motion included copies of the police reports.
Mr. Lidgett filed a supporting declaration substantially similar to his first one, regarding the conduct of Officers Martin and Sims.
Mr. Lidgett's declaration further stated that when defendant ran away from Officers Martin and Sims, Officers Messick and Mundhenke arrived to look for him. When they approached his location, he tried to surrender but they beat him. Mr. Lidgett's declaration repeated the same allegations as in the first declaration, that defendant was repeatedly beaten by the officers who arrested him, and they refused to allow an EMT to examine him.
Mr. Lidgett declared that to corroborate the excessive force/violence used by Officers Messick and Mundhenke, the defense investigator contacted Denise Grishman, who owned the residence where the alleged "second beating" occurred, and she stated that she did not see defendant resist, and "the man the officers were trying to arrest was yelling for help."
Police reports
In contrast to the first Pitchess motion, defendant's second motion was supported by multiple police reports about the robbery, the initial detention of defendant, and his arrest.
Officer Martin's report about the initial detention of defendant, and his struggle with Martin and Officer Sims, was virtually identical to Martin's subsequent trial testimony about the incident.
Officer Martin wrote that after he gave up chasing defendant, Officers Messick and Mundhenke arrived in the area about two minutes later, found defendant, and took him into custody. Martin's report also states that defendant was taken to the hospital where he received treatment, but does not specify what injuries or treatment he received.
Officer Messick also filed a report, stating that he responded to the area with Officer Mundhenke, set up a perimeter, and saw defendant hiding behind a trash can. They ordered him to get on the ground and defendant refused to comply. They feared he was still armed with the robbery weapon, so Officer Mundhenke took control of defendant's left arm, used his body to place defendant on the ground, and put his knee on defendant's upper back. Messick reported that defendant still failed to comply, so Messick placed his left knee on defendant's lower back, his right knee on defendant's shoulders, and "applied body weight" to ensure he could not run away. They took him into custody without further incident. The report states that Sergeant Knudson was informed of the force used to take defendant into custody.
The City's opposition
On September 12, 2014, the City stated there was good cause for the court to review the records of Officers Martin and Sims for excessive force, and not for any other purpose. The City opposed the rest of the motion and argued defendant failed to state good cause to review the records of the other two officers.
The court's second Pitchess hearing
On September 30, 2014, the court stated that it would review the records of Officers Martin and Sims for excessive force, but advised Mr. Lidgett that his declaration was not "exactly clear" about the alleged conduct of Officers Messick and Mundhenke. The court stated that while Mr. Lidgett identified Messick and Mundhenke, and said they arrived in the area to look for defendant, he did not identify the officers who allegedly beat defendant after he was taken into custody. Mr. Lidgett stated that he was specific about Officers Messick and Mundhenke. The court replied that he only said that the officers did something. "You didn't say Officer Messick did this. Officer Mundhunke [sic] did this." Mr. Lidgett replied that he was only addressing the two officers who arrested defendant, and he could not tell which officer delivered which blow because they were both "doing it in conjunction."
The court rejected reliance on statements from a witness that defendant called for help, because defendant could have been calling for help while he was being arrested, and the witness did not say that defendant was being beaten and by who.
The court denied the Pitchess motion for Officers Messick and Mundhenke and declined to review their records. Mr. Lidgett said he would file a third Pitchess motion, but he never did so.
The court's ruling
After the second in camera hearing, the court advised the parties that it was partially granting disclosure of information from certain records.
TRIAL PROCEEDINGS
Trial
On February 17, 2015, the court granted Mr. Lidgett's motion to be relieved because of a conflict and appointed new counsel. Thereafter, defendant was represented by Ronald Carter for the remainder of the criminal proceedings.
On June 25, 2015, the People filed an amended information charging defendant with count I, robbery of Ms. Silva (§ 212.5, subd. (c)), with the special allegation of personal use of a firearm (§ 12022.53, subd. (b)); count II, possession of a firearm by a felon (§ 29800, subd. (a)(1)); counts III and IV, felony resisting arrest by threats or violence as to, respectively, Officers Martin and Sims (§ 69); count V, possession of a firearm by a violent felon (§ 29900, subd. (a)); and count VI, felony unlawful resisting arrest by Sims and causing serious bodily injury (§ 148.10, subd. (a)). The amended information also alleged defendant had one prior strike conviction, one prior serious felony enhancement, and two prior prison term enhancements.
Defendant's jury trial began the same day. Officers Martin and Sims testified as set forth above. There is no indication in the record that either officer was cross-examined by any evidence derived from the court's previous Pitchess order.
Verdict
On July 2, 2015, the jury found defendant guilty as charged in count I, robbery of Ms. Silva, with the special allegation of personal use of a firearm found true; count II, possession of a firearm by a felon; counts III and IV, felony resisting arrest by threats or violence as to, respectively, Officers Martin and Sims; and count V, possession of a firearm by a violent felon.
The jury found defendant not guilty of count VI, felony unlawful resisting arrest by Officer Sims and causing serious bodily injury, but guilty of the lesser included offense of misdemeanor resisting a peace officer (§ 148, subd. (a)(1)).
The court found true the prior conviction allegations that defendant had one prior strike, one prior serious felony enhancement, and two prior prison term enhancements.
SENTENCING HEARING
On August 13, 2015, the court convened the scheduled sentencing hearing. The court heard and denied defendant's motions pursuant to People v. Marsden (1970) 2 Cal.3d 118 and Faretta v. California (1975) 422 U.S. 806.
The court found no mitigating circumstances. It found aggravating circumstances that defendant's prior convictions were numerous; he was on misdemeanor probation when he committed the offenses; his prior performance on probation and parole was not satisfactory; and he showed that he was a serious danger to society.
The court found defendant was statutorily ineligible for probation based on three factors: his prior strike conviction; he used a deadly weapon in the commission of count I and there were no unusual circumstances, pursuant to section 1203, subdivision (e)(3); and the section 12022.53, subdivision (b) personal use enhancement was found true, pursuant to section 12022.53, subdivision (g).
The court further found that even if defendant was eligible for probation, he would not be suitable based on the serious nature of the offense, "including the use of a firearm on the 66-year-old victim" in the robbery.
The court found the term for count V, possession of a firearm by a felon, should be consecutive to the term for count I, robbery, because defendant was in possession of the firearm approximately eight hours after the robbery; and consecutive sentences were also appropriate for counts III and IV.
The court sentenced defendant to an aggregate term of 29 years: the upper term of five years for count I, robbery, doubled to 10 years as the second strike term; plus consecutive terms of 10 years for the section 12022.53, subdivision (b) personal use enhancement, and five years for the prior serious felony enhancement; and three consecutive terms of 16 months (one-third the midterms, doubled) for counts III and IV, felony resisting arrest, and count V, possession of a firearm by a violent felon.
The court stayed the term for count II, possession of a firearm by a felon; and imposed a concurrent term for the misdemeanor resisting conviction in count VI. The court also ordered the prior prison term enhancements stricken.
DISCUSSION
I. Pitchess Review
We begin with the well-settled standards for the Pitchess discovery procedure. "Evidence Code sections 1043 and 1045, which codified our decision in Pitchess ... allow discovery of certain relevant information in peace officer personnel records on a showing of good cause. Discovery is a two-step process. First, defendant must file a motion supported by declarations showing good cause for discovery and materiality to the pending case. [Citation.] This court has held that the good cause requirement embodies a 'relatively low threshold' for discovery and the supporting declaration may include allegations based on 'information and belief.' [Citation.]" (People v. Samuels (2005) 36 Cal.4th 96, 109.)
"The relatively relaxed standards for a showing of good cause under [Evidence Code] section 1043, subdivision (b) - 'materiality' to the subject matter of the pending litigation and a 'reasonable belief' that the agency has the type of information sought - insure the production for inspection of all potentially relevant documents." (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84; People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 856.)
"Once the defense has established good cause, the court is required to conduct an in camera review of the records to determine what, if any, information should be disclosed to the defense. [Citation.]" (People v. Samuels, supra, 36 Cal.4th at p. 109.) The court may order disclosure of "only that information falling within the statutorily defined standards of relevance. [Citations.]" (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).)
"[Evidence Code] [s]ection 1045 requires the court, in determining relevance, to examine the information and exclude from disclosure: (1) complaints regarding conduct more than five years old, (2) the 'conclusions of any officer investigating a complaint ...,' and (3) facts that are 'so remote as to make disclosure of little or no practical benefit.' [Citation.] The defendant is entitled only to information the court concludes is relevant to the case, following the in camera review. [Citations.]" (People v. Johnson (2004) 118 Cal.App.4th 292, 300; Warrick, supra, 35 Cal.4th at p. 1019.)
The defendant is entitled to discover relevant information under Pitchess even in the absence of any judicial determination that the potential defense is credible or persuasive. (Warrick, supra, 35 Cal.4th at p. 1026; People v. Gaines (2009) 46 Cal.4th 172, 182.) "[O]nly documentation of past officer misconduct which is similar to the misconduct alleged by defendant in the pending litigation is relevant and therefore subject to discovery. [Citations.] This is because 'evidence of habit or custom [is] admissible to show that a person acted in conformity with that habit or custom on a given occasion.' [Citation.]" (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1021, italics in original.)
For example, in Herrera v. Superior Court (1985) 172 Cal.App.3d 1159, the defendant was charged with drunk driving, battery, and resisting an officer. He filed a Pitchess motion for disclosure of prior complaints against the arresting officers for excessive force. Herrera explained that the defendant was entitled "to disclosure of only that information which the court, after conducting its in camera review, determines is relevant to the case. In this case, the only relevant information was that which related to the three officers' alleged propensity to use excessive force," subject to the limitations of Evidence Code section 1045. (Herrera v. Superior Court, supra, at p. 1163, first italics in original, remaining italics added.)
The trial court has broad discretion in ruling on both the good cause and disclosure components of a Pitchess motion. On appeal, this court is required to independently review the sealed and confidential records, and determine whether the superior court abused its discretion in refusing to order disclosure. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Mooc (2001) 26 Cal.4th 1216, 1229 (Mooc)).
In this case, consistent with customary procedure, the officers' records and the transcripts of the in camera hearings have been made part of the record on appeal but have been sealed; appellate counsel for defendant has not been permitted to view them, we have independently examined the material in camera, and the material will remain confidential and under seal pending further order of this court. (See, e.g., People v. Hughes, supra, 27 Cal.4th at p. 330.) II. Review of the Court's Disclosure Orders for Officers Martin and Sims
As set forth above, the court partially granted defendant's Pitchess motion as to Officers Martin and Sims. At the first in camera hearing, it found defendant stated good cause to review Martin's records for "false testimony and/or lying on reports," but did not order disclosure of any information. At the second in camera hearing, it found defendant stated good cause to review the records of Martin and Sims for "use of excessive force or violence," and ordered disclosure of certain information.
Defendant requests this court to independently review sealed transcripts of the two in camera Pitchess hearings and the entirety of the officers' confidential and sealed records, to determine whether the superior court should have ordered disclosure of any additional information.
The superior court's determinations pursuant to a Pitchess inquiry are reviewed for abuse of discretion. (People v. Hughes, supra, 27 Cal.4th at p. 330.) We have independently reviewed the record of the court's two Pitchess in camera hearings, and the sealed and confidential documents that the court reviewed at those hearings. We find the court did not abuse its discretion and there was no additional information subject to disclosure. III. The Court's Decision to Not Review Officer Sims's Records for Complaints of False Reports or False Testimony
Defendant next contends that the court abused its discretion when it denied his first Pitchess motion to review Officer Sims's records for any complaints about making false reports or giving false testimony. Defendant argues his Pitchess motion, supported by his attorney's declaration, stated good cause for an in camera review because he asserted that Sims lied at the preliminary hearing that defendant allegedly resisted arrested and the officers were compelled to use force against him.
At the first Pitchess hearing, the court stated that it would only review Officer Martin's records for "dishonesty" because Martin was "apparently the only one who wrote a report." However, defendant's first Pitchess motion sought disclosure of information about complaints against Martin and Officer Sims for "false testimony and/or lying on reports." Defendant filed the police reports in support of his second Pitchess motion, which confirmed the court's belief that only Martin filed a report about the initial contact with defendant.
While Officer Sims did not file a report, he testified at the preliminary hearing about their initial attempts to detain defendant. Defendant's Pitchess motion, supported by counsel's declaration, asserted Sims lied at the preliminary hearing about the detention and the officers' alleged use of excessive force. Defendant's motion sought review of Sims's records for complaints about lying on reports or giving false testimony. Defendant thus stated good cause for the court to review Sims's records for any complaints about giving false testimony.
While the court abused its discretion in failing to review Officer Sims's records on this subject, we find the error was not prejudicial. At the in camera hearings, the custodian of records presented the entirety of the records for Officers Martin and Sims to the superior court for review, and those records have been transmitted to this court under seal. We have reviewed those records and determined the court was not required to disclose additional information about Martin regarding false reports/testimony and excessive force, and about Sims regarding excessive force. Even if the court had reviewed Sims's records for any complaints about "giving false testimony," we similarly conclude there would not have been any information subject to disclosure. (See, e.g., Mooc, supra, 26 Cal.4th at p. 1232.) IV. The Court's Decision Not to Review the Records of Officers Messick and Mundhenke
Defendant argues the superior court abused its discretion when it declined to review the records of Officers Messick and Mundhenke for any purpose. Defendant asserts his second Pitchess motion set forth good cause to review the records of Messick and Mundhenke for excessive force, and Messick for false reports and/or testimony, based on his allegations that these officers beat him as he tried to surrender and lied about it in the report. Defendant contends the court improperly denied his motion to review the records based on the faulty reasoning that he failed to identify the officers who arrested him, and failed to specify which officers inflicted particular blows upon him.
A. Good Cause and a Plausible Factual Foundation
As explained above, there is a " 'relatively low threshold' for establishing the good cause necessary to compel in camera review by the court. [Citations.] The defendant must show that the personnel records are material to his or her defense, and state a reasonable belief that the records contain the type of information sought. [Citation.]" (People v. Thompson (2006) 141 Cal.App.4th 1312, 1316.) "[T]he defendant must ' "establish a plausible factual foundation" ' for its defense. [Citation.] To do so, the defendant 'must present ... a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents.' [Citation.] A scenario sufficient to establish a plausible factual foundation 'is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges.' [Citation.] [¶] Depending on the circumstances of the case, the denial of facts described in the police report may establish a plausible factual foundation. [Citation.] A factual scenario does not have to be reasonably probable or credible." (Id. at pp. 1316-1317, italics in original.)
B. Analysis
In defendant's second Pitchess motion, counsel's supporting declaration stated that after defendant ran away from Officer Martin, "Officers Messick and Mundhenke arrived shortly thereafter to assist in the pursuit" of defendant while Martin stayed with the injured Sims, and that "[t]he officers" patrolled the area to look for him. Counsel's declaration stated that defendant sat by a residence and saw "patrol vehicles as they canvassed the area in search for him." "As officers approached his location he stepped away from the residence with his hands up." Counsel's declaration further states that "[t]he officers ran to him," yelled at him to stop resisting, and beat him with their batons. The declaration avers that "the officers" dragged him in and out of their patrol car and continued to beat him.
Also as set forth above, the superior court stated it would not review the records of Officers Messick and Mundhenke for any purpose because defendant's motion and counsel's declaration failed to identify the arresting officers and clarify which officers inflicted particular blows upon him. In making this finding, however, the court failed to account for the police reports submitted as exhibits. Officer Martin's report described the initial detention of defendant, Martin and Sims did not pursue defendant when he ran away, and that Messick and Mundhenke arrived within two minutes and "located [defendant] sitting behind a trash can ... who was subsequently taken into custody." Messick's report stated that he responded with Mundhenke to the area, set up a perimeter, tried to take defendant into custody, defendant resisted, and they subsequently arrested him. The police reports do not identify any other officers, besides Messick and Mundhenke, who were involved in the second detention and arrest of defendant.
We thus find that, contrary to the superior court's conclusions, the police reports submitted in support of defendant's motion established that only Officers Messick and Mundhenke were involved in defendant's arrest, and thus placed into context counsel's supporting declaration that they were the officers who arrested defendant and allegedly beat him.
This conclusion does not end our analysis. While defendant's motion may have adequately identified Officers Messick and Mundhenke as the officers who arrested him, he failed to establish good cause for disclosure of their records, or the materiality of the potential evidence. Defendant was charged with felony resisting only as to Officers Martin and Sims, in violation of section 69. An officer's alleged use of excessive force is a valid defense to a charge of felony resisting arrest in violation of section 69. (In re Manuel G. (1997) 16 Cal.4th 805, 815; People v. White (1980) 101 Cal.App.3d 161, 164; People v. Delahoussaye (1989) 213 Cal.App.3d 1, 7.)
However, defendant was never charged with resisting as to Officers Messick and Mundhenke. Any complaints for false reports and/or excessive force that may have previously been filed against Messick and Mundhenke would not have been relevant to impeach their prospective trial testimony since defendant was not charged with committing any offenses against them. There is also no evidence that Messick and Mundhenke were present or witnessed the actions of Officers Martin and Sims when they initially detained defendant, or when defendant broke away and escaped.
In addition, the defense did not introduce any evidence at trial that defendant was beaten or assaulted in any way by Officers Messick and/or Mundhenke when he was arrested. The defense only introduced photographs of certain injuries on defendant's body, and never introduced defendant's medical records. Officer Martin testified at trial, and conceded that he likely inflicted the blows that led to the large gash on defendant's head and the contusions on his legs, as depicted in the photographs. The jury thus heard Martin account for defendant's injuries, so that there would have been nothing left to undermine Mundhenke's testimony.
We thus conclude that while defendant established the identity of the arresting officers, he failed to establish the materiality of the potential evidence, and the court's decision not to review the records of Officers Messick and Mundhenke was not prejudicial based on the record before this court.
V. Senate Bill 620
We granted defendant's petition for rehearing to address his contention that the matter must be remanded for the court to consider whether it should strike the section 12022.53 firearm enhancement, based on the recent legislative amendment to that statute.
As set forth above, the court imposed the second strike term of 10 years for count I, robbery, plus a consecutive term of 10 years for the section 12022.53, subdivision (b) enhancement, for the personal use of a firearm.
At the time of the sentencing hearing in this case, imposition of an enhancement under section 12022.53 was mandatory, and it could not be stricken in the interest of justice pursuant to section 1385 or any other provision of law. (People v. Felix (2003) 108 Cal.App.4th 994, 999; People v. Sinclair (2008) 166 Cal.App.4th 848, 852-853; People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363.)
On October 11, 2017, the Governor signed Senate Bill 620, effective January 1, 2018. (Stats. 2017, c. 682 (S.B. 620), § 2.) As relevant to this case, Senate Bill 620 amends section 12022.53, subdivision (h) to give discretion to the trial court to strike a firearm enhancement in the interest of justice. Subdivision (h) now states:
"The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
Both defendant and the People agree that Senate Bill 620's amendment to section 12022.53, subdivision (h) applies retroactively to cases not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 746; People v. Francis (1969) 71 Cal.2d 66, 75-76; People v. Brown (2012) 54 Cal.4th 314, 323.) They also agree that the instant matter is not final, and it must be remanded for the trial court to exercise its discretion for possible resentencing under section 12022.53, subdivision (h).
At the sentencing hearing, the trial court made findings as to the exercise of its discretion when it imposed the sentence. Since it did not have discretion to strike the section 12022.53 enhancement, it did not address or consider whether imposition of the enhancement under the facts and circumstances of this case would be in furtherance of justice pursuant to section 1385.
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion. [Citation.]" (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
The court was statutorily prohibited from considering whether to exercise its discretion when it imposed the section 12022.53 enhancement, and made no discretionary sentencing findings that would eliminate the need for a remand in this case.
Our appellate courts are being called upon to analyze the circumstances under which the exercise of discretion by our trial courts should result in reduced weapons enhancement sentences. As guidance develops regarding the scope of proper exercise of discretion under the statute, in the interest of justice, we choose to direct the trial court to determine whether defendant should benefit from section 12022.53 in this case.
We therefore conclude that the matter must be remanded for the court to determine in the first instance whether to exercise its new statutory discretion to strike the firearm enhancement in this case under section 12022.53, subdivision (h). By remanding the matter, we do not find that the court must strike the enhancement, but only that the court must consider whether to exercise its discretion pursuant to the newly-enacted provisions of section 12022.53, subdivision (h). VI. Correction of Abstract of Judgment
The court found true the allegation in the amended complaint that defendant had one prior strike. At the sentencing hearing, the court imposed second strike terms. However, the abstract of judgment does not reflect in section No. 4 that defendant was sentenced pursuant to a "strike prior" under section 667, subdivisions (b) through (i) or section 1170.12. The People thus request remand for correction of the abstract of judgment.
We also note that the superior court found true the allegations that defendant had served two prior prison terms pursuant to section 667.5, subdivision (b). At the sentencing hearing, however, the court decided to strike those terms. This decision is not reflected in the abstract of judgment.
Thus, on remand the court shall correct the abstract as to the imposition of second strike terms, and the court's decision to strike the two section 667.5, subdivision (b) enhancements.
DISPOSITION
The matter is remanded for the court to determine whether to exercise its discretion pursuant to section 12022.53, subdivision (h).
Also on remand, the court shall correct the abstract of judgment as to the imposition of the second strike terms and the court's decision to strike the two section 667.5, subdivision (b) enhancements. The trial court shall prepare and forward to all appropriate parties a certified copy of an amended abstract of judgment.
In all other respects, the judgment is affirmed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.