Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F10329
RAYE, J.Defendant Ricky Williams was found guilty by a jury of deterring or resisting an executive officer (Pen. Code, § 69) and battery on a peace officer (Pen. Code, § 243, subd. (b)). The jury could not reach a verdict on a charge of driving under the influence (Veh. Code, § 23152, subd. (a)), which subsequently was dismissed. The trial court granted defendant probation and ordered him to serve 180 days in county jail.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant appeals, requesting that we review the trial court’s in camera Pitchess determination. He also contends the trial court erred in imposing attorney fees and costs of probation without a hearing on his ability to pay. Finally, he seeks a correction of his custody and conduct credits. We find merit in defendant’s claims and shall remand the matter for the trial court to conduct a proper Pitchess hearing and, if necessary, a hearing on defendant’s ability to pay attorney fees and costs of probation.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
FACTUAL BACKGROUND
According to testimony by Sacramento Police Officer Stephen Moore, on the night of the incident, Moore was en route to his patrol area in a marked police car when he observed a vehicle driving substantially below the speed limit and weaving within its lane. Although the vehicle’s license plate exhibited current registration tags, a registration check revealed that the vehicle’s registration had expired.
Officer Moore followed the vehicle into a gas station and activated the overhead lights of his police car to initiate a traffic stop. The officer used his patrol car’s public address system to instruct the driver of the other vehicle, later identified as defendant, to pull forward from the gas pump. Instead, defendant got out of the vehicle, as did his wife, and neither followed the officer’s instructions to get back in their vehicle. Defendant’s wife told the officer “she had to pee,” and she walked toward the building portion of the gas station.
Defendant yelled at the officer that he was “profiling” him. Officer Moore testified he was concerned that defendant’s wife, whom he could no longer see, might be able to come up behind him. He radioed for another patrol car to assist him, then approached defendant and attempted to place him in a rear wrist lock, intending to put him in the back seat of the patrol vehicle in order to focus his attention on defendant’s wife. The officer explained that a rear wrist lock was “the next step when someone is not responding to verbal requests or commands.”
According to Officer Moore, he attempted to take hold of defendant’s forearm, but it was “extremely slimy” and defendant was able to pull away, although he was not completely free of Moore’s grasp. Defendant and the officer began spinning around each other, and defendant grabbed the officer in a “bear hug.” The officer ordered defendant to get on the ground, but defendant did not comply.
Officer Moore attempted to free himself from defendant’s grasp, and as they struggled, defendant fell to the ground. Officer Moore tried to move defendant onto his stomach but instead ended up on the ground as well, with defendant on top of him. The officer repeatedly told defendant to get on the ground and unsuccessfully tried to get defendant off of him. An in-car video camera in the patrol car recorded some of the incident.
A professional news videographer who was driving by spotted the struggle and pulled into the gas station. He began video taping the altercation between the officer and defendant, then laid his camera on the ground in recording mode, approached defendant with a firearm drawn, and ordered defendant to get off the officer. Defendant put up his hands, rolled off of Officer Moore, and complied with his commands to get on the ground and lie still. According to the officer, defendant “was still saying what he had been saying most of the time[,] [which] was, I come in peace. I come in peace, Officer.” Additional officers subsequently arrived at the scene.
A check run later the same day on defendant’s vehicle showed the registration to be current.
Defendant testified that when he first got out of his vehicle at the gas station, he thought the officer was instructing him to “[c]ome to the back of the vehicle.” He explained that the officer’s public address system was “very scratchy and very broken up” and his ears “were a little plugged.” Defendant testified that, once he understood the officer was telling him to get back in his car, he did not comply because he was afraid. Instead, as Officer Moore approached him, defendant put his hands up and told the officer, “I come in peace.” According to defendant, the officer grabbed his arm and “slung [him] around,” causing him to fall backwards. Defendant maintained that he grabbed the officer to prevent himself from falling and that he was not resisting but “was basically allowing him to do with me what he wanted without him seriously hurting me.” Defendant testified that the officer fell to the ground when he tried to trip defendant, and when defendant tried to help him up, he was pulled to the ground as well. According to defendant, the videographer was present when he first pulled into the gas station and witnessed the entire incident.
DISCUSSION
I
Defendant requests that we review the trial court’s in camera Pitchess ruling to determine whether the court abused its discretion in determining which records to disclose to the defense. (Pitchess, supra, 11 Cal.3d 531; People v. Prince (2007) 40 Cal.4th 1179, 1285-1286 [trial court’s decision on discoverability of material in officer’s files reviewed for abuse of discretion]; People v. Hughes (2002) 27 Cal.4th 287, 330 [same].) The People accede to this request. Having done so, we conclude the trial court did not utilize proper procedures when conducting its in camera review of records in response to defendant’s Pitchess motion.
Before trial, defendant moved to discover personnel records of numerous police officers, including Officer Moore. Defendant sought all documented complaints, and information pertaining to same, against the officers during the preceding five years involving illegal arrest, unnecessary or excessive force, falsification of evidence or testimony, discrimination, unlawful search and seizure, and other acts of moral turpitude. The motion requested the court to conduct an in camera review of any documents produced and to place copies of the files reviewed in a sealed envelope in the court file for possible appellate review. Defendant’s attorney submitted a declaration stating that the information was material because the defense expected to show that any force used by defendant was “in defense of [his] person against acts of excessive and illegal force” by the officers and that defendant was unlawfully arrested.
At the hearing on defendant’s motion, the trial court asked whether either party had any further comment, then went into chambers accompanied by a representative from the city attorney’s office and a sergeant with the police department. In camera, the court stated it was limiting the inquiry to Officer Moore. The court began to list the subjects concerning which defendant was seeking disclosure when the following discussion ensued:
Although the trial court did not rule expressly that defendant had made an adequate showing of materiality, this finding is implicit in the court’s holding of an in camera Pitchess hearing, and the People have not raised any issue in this regard.
“[CITY ATTORNEY REPRESENTATIVE]: I think it was excessive force and
“THE COURT: Fabrication
“[CITY ATTORNEY]: Falsification of records.
“THE COURT: Anything on that?
“[POLICE SERGEANT]: One case of excessive force.
“THE COURT: And what’s the name of the individual?”
The police sergeant then supplied the court with the name and other identifying information of the claimant and the details of the excessive force complaint. The court then continued its inquiry:
“THE COURT: Do you have anything about dishonesty or anything on him?
“[POLICE SERGEANT]: No, your Honor.
“THE COURT: Any acts of moral turpitude or anything?
“[POLICE SERGEANT]: No, your Honor.
“THE COURT: I think that’s enough. I don’t think from what I’m seeing the rest of it doesn’t matter [sic]. I’m saying only as to that one particular officer. [¶] Let’s go back out.”
Back in open court, the trial court informed defendant it had limited its inquiry to Officer Moore and provided the name, address, and telephone numbers of the claimant whose name had been disclosed in chambers.
This court granted an application by defendant’s appellate counsel to augment the record to include, in sealed form, the transcript from the in camera Pitchess hearing and “either a list of the documents reviewed, or a file of copies of the confidential documents reviewed.” We received the requested transcript but, for reasons that are evident from a review of that transcript, neither a list of the documents reviewed by the trial court nor copies of those documents.
Pitchess motions provide a means for “screening law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant’s defense.” (People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc).) Such motions are “based on the premise that evidence contained in a law enforcement officer’s personnel file may be relevant to an accused’s criminal defense and that to withhold such relevant evidence from the defendant would violate the accused’s due process right to a fair trial.” (Id. at p. 1227.)
In Mooc, the California Supreme Court outlined the appropriate procedures for conducting a Pitchess hearing once a defendant makes a preliminary showing of materiality. “[T]he custodian of the records is obligated to bring to the trial court all ‘potentially relevant’ documents to permit the trial court to examine them for itself. [Citation.]... Documents clearly irrelevant to a defendant’s Pitchess request need not be presented to the trial court for in camera review. But if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court.” (Mooc, supra, 26 Cal.4th at pp. 1228-1229.) At the in camera hearing, the custodian of records should be prepared to state for the record what other documents or category of documents are not being presented and why these have been deemed nonresponsive to the defendant’s motion. (Id. at p. 1229; People v. Wycoff (2008) 164 Cal.App.4th 410, 414-415.) To preserve the record for appeal, “[t]he trial court should then make a record of what documents it examined before ruling on the Pitchess motion” by photocopying or preparing a list of the documents reviewed or by stating on the record which documents were considered. (Mooc, at p. 1229.)
“[W]here the custodian of records does not produce the entire personnel file for the court’s review, he or she must establish on the record what documents or category of documents were included in the complete personnel file. In addition, if it is not readily apparent from the nature of the documents that they are nonresponsive or irrelevant to the discovery request, the custodian must explain his or her decision to withhold them. Absent this information, the court cannot adequately assess the completeness of the custodian’s review of the personnel files, nor can it establish the legitimacy of the custodian’s decision to withhold documents contained therein. Such a procedure is necessary to satisfy the Supreme Court’s pronouncement that ‘the locus of decisionmaking’ at a Pitchess hearing ‘is to be the trial court, not the prosecution or the custodian of records.’ [Citation.] It is for the court to make not only the final evaluation but also a record that can be reviewed on appeal.” (People v. Guevara (2007) 148 Cal.App.4th 62, 69.)
Here, the trial court did not conduct a proper Pitchess review. The court relied on determinations by the representative of the police department as to which personnel records should be disclosed to the defense rather than conducting its own review of those records. It also failed to ascertain what, if any, records the police department had excluded from court review. Moreover, the court did not inquire about complaints relating to illegal arrests, discrimination, or unlawful search and seizure, nor did it rule in open court that disclosure in these areas was immaterial to the issues set forth in the defense attorney’s declaration in support of the motion. As the court did not independently review the personnel records and did not make any inquiry regarding any records that the police department may have deemed unresponsive to the discovery request, we are unable to conduct any meaningful review on appeal.
Accordingly, the judgment must be reversed and the matter remanded for the trial court to conduct a new Pitchess hearing, at which it must personally review the personnel records produced in response to the defense motion and make a record sufficient for appellate review of the records it considered and those that were not produced. (See People v. Hustead (1999) 74 Cal.App.4th 410, 418.)
II
Defendant contends the trial court erroneously believed it was required to impose attorney fees and erred in failing to hold a hearing on his ability to pay before ordering those fees and probation costs. As explained herein, we shall order the trial court to make a determination of defendant’s ability to pay attorney fees upon conclusion of the criminal proceedings in the trial court.
Although the heading for defendant’s argument regarding attorney fees includes a claim that those fees were imposed without notice, defendant provides no analysis of this claim except in his reply brief. (See Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) In addition to this procedural problem, we note that defendant was advised of the repayment provisions contained in section 987.8 when he was appointed counsel at his arraignment, and the probation report listed attorney fees as one of the reimbursable costs in his matter.
The report prepared by the probation department for defendant’s sentencing contained the following statement: “If there are reimbursable costs to the County in the disposition of this case for appointed counsel, pre-sentence investigation, probation supervision or incarceration, it is recommended the defendant be ordered to report to the Department of Revenue Recovery [Revenue Recovery] for a financial evaluation and recommendation of ability to pay said costs.” The report noted presentence probation costs of $702, monthly probation costs of $46, and a cost of $25 per urinalysis test.
At defendant’s sentencing hearing, his attorney asked the trial court to impose the minimum “fees and fines” and, where possible, to delete them. In particular, he requested a waiver of the “cost of investigation and presentence report” based on defendant’s ability to pay, noting “the other fines and fees that will be imposed will substantially tax his ability to maintain his family’s standard of living....”
Later in the hearing, the trial court stated it was “not sure” which fees defendant’s attorney was suggesting were discretionary. The court also stated it believed it was required to impose attorney fees, which was confirmed by the court clerk.
Defendant’s attorney reiterated his request that the probation fees listed in the probation report be stricken. The prosecuting attorney objected, maintaining that defendant had an ability to pay because he was employed.
The trial court found the fees were not “excessive,” noting: “[I]f [defendant had] been convicted of a DUI, it probably would have been more like $2,000 in fees, fines, and assessments. He avoided all that.” The court ordered attorney fees within “the Court guidelines” and stated it would advise the parties of the amount, which they could seek to modify “by an appropriate hearing or a written request.”
At the end of the hearing, the court told defendant that he “should go to room 102 downstairs to deal with the revenue and recovery and reimbursement.”
Approximately two months later, a declaration and order for payment was signed by a representative of Revenue Recovery. The declaration was on a form with preprinted language stating that on the date of sentencing, defendant “was ordered to report to [Revenue Recovery] for financial evaluation” regarding probation costs. Another box marked on the declaration stated: “[T]he defendant has failed/refused to cooperate with... Revenue Recovery for financial evaluation regarding payment of these civil fees, and has been notified by mail that his/her failure to dispute these amounts will be presumed to be a waiver of his/her right to a hearing regarding determination of these amounts.” The trial court signed an order and judgment for reimbursement of $2,760, as recommended in the declaration.
Preliminarily, we reject the People’s argument that defendant has forfeited these claims by failing to raise them in the trial court. With regard to attorney fees, we agree with the appellate court in People v. Viray (2005) 134 Cal.App.4th 1186, 1215 that forfeiture of this claim cannot “properly be predicated on the failure of [defense counsel] to challenge an order concerning his own fees,” given the “patent conflict of interest.” And although a defendant is deemed to have forfeited claims regarding probation costs for purposes of appeal if he or she fails to object in the trial court (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072), here, defendant objected to paying the probation-related costs, contending he did not have an ability to pay them.
Accordingly, we turn to the merits. With regard to attorney fees, section 987.8, subdivision (b) provides that after notice and a hearing, “the court may... make a determination of the present ability of the defendant to pay all or a portion of the cost” of court appointed counsel and “may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of [that cost].” Similarly, when probation costs are generated by a criminal conviction, “[t]he court shall order the defendant to appear before the probation officer, or his or her authorized representative, to make an inquiry into the ability of the defendant to pay all or a portion of these costs,” and the probation officer must inform the defendant of his or her right to a hearing on his ability to pay and the payment amount. (§ 1203.1b, subd. (a).) If the defendant does not waive this right, the matter must be referred to the court for a hearing. (§ 1203.1b, subd. (b).)
Here, the trial court concluded that the recommended probation costs were not excessive and that attorney fees would be imposed in an amount to be determined. At the end of the hearing, the court directed defendant to go to Revenue Recovery, which was in accordance with the recommendation contained in the probation report that he be referred to that agency “for a financial evaluation and recommendation of [his] ability to pay said costs.” Defendant did not appear at that agency despite the court’s instruction to do so.
However, neither the trial court’s oral instructions nor its written orders expressly stated that defendant’s ability to pay fees and costs would be assessed by Revenue Recovery. The court simply directed defendant to go to that agency to “deal with the revenue and recovery and reimbursement.” Nor is it clear that the court made this determination at the sentencing hearing. And there is no evidence that defendant was advised of his right to a hearing on his ability to pay or waived a determination in this regard. Moreover, the court appeared to believe that the imposition of attorney fees was mandatory, whereas section 987.8 provides the court discretion in this regard.
In light of the ambiguities in the record, and as the matter is being remanded in any event, we shall direct the trial court to make a determination of defendant’s ability to pay probation costs and attorney fees in accordance with sections 987.8 and 1203.1b upon conclusion of the criminal proceedings.
III
Finally, defendant claims he is entitled to an additional day of custody credit and that the trial court erroneously delegated the computation of conduct credits to jail personnel. The People concede these errors, and we accept their concession.
DISPOSITION
The judgment is reversed and the matter remanded for the trial court to conduct a new Pitchess hearing in accordance with the procedures discussed herein. If the court finds no additional discoverable information, the court should reinstate the judgment. If the court finds additional discoverable information, defendant must be given an opportunity to determine whether the information would have led to any relevant admissible evidence to present at trial. If defendant demonstrates prejudice, the trial court must order a new trial. If no prejudice is demonstrated, the judgment should be reinstated.
Upon conclusion of the criminal proceedings, the trial court is directed to determine defendant’s ability to pay attorney fees and costs of probation in accordance with sections 987.8 and 1203.1b, and exercise its discretion under section 987.8 with respect to payment of attorney fees. In addition, the court is directed to recalculate defendant’s presentence custody credits and conduct credits.
We concur: NICHOLSON, Acting P. J., CANTIL-SAKAUYE, J.