Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA069391 Paul A. Bacigalupo, Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Daniel C. Chang and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, Acting P. J.
INTRODUCTION
Defendant and appellant Gregory Baldwin was found to be in violation of his probation. On appeal, defendant contends that the prosecutor failed to disclose to him information concerning an internal investigation of two Los Angeles Police Department (LAPD) officers for making false statements, to which he was entitled under Brady v. Maryland (1963) 373 U.S. 83 (Brady). Defendant claims this deprived him of impeachment evidence to show that the evidence admitted against him was not credible. Defendant contends that he was therefore denied a fair probation violation hearing and due process in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Defendant also requests that we conduct an independent review of the in camera proceedings conducted pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to determine whether the custodian of records failed to disclose potentially discoverable personnel records to the trial court, and whether the trial court abused its discretion by incorrectly withholding discoverable personnel records. We affirm the judgment.
BACKGROUND
A. Probation Revocation Hearing
LAPD Officer Pierre Viellemaringe testified at defendant’s probation revocation hearing that on June 26, 2008, he and LAPD Officers Byerly and Geoghegan were at a motel in the city of Gardena investigating the sale of narcotics. Officer Viellemaringe saw defendant in the lobby area of the motel. Defendant appeared startled when he looked in Officer Viellemaringe’s direction. Defendant removed a paper towel from his pocket and dropped it. Officer Viellemaringe testified that he saw Officer Byerly pick up the paper towel. The three officers, side by side, followed defendant and saw defendant enter a motel room and close the door. While defendant was in the motel room, Officer Byerly opened up the paper towel and told him that “It’s rock cocaine.” The trial court limited the statement to Officer Viellemaringe’s state of mind.
The first names of Officers Byerly and Geoghegen cannot be determined from the record, and they did not testify at the probation revocation hearing.
According to Officer Viellemaringe, Officer Byerly knocked on the motel room door, the officers identified themselves and asked defendant to open the door. Defendant did not respond. Officer Geoghegan obtained a key from the manager and Officer Byerly used it to open the door. The officers saw defendant, ordered him to exit the room, and defendant complied. Officers Viellemaringe and Geoghegan stayed by defendant while Officer Byerly entered and conducted a brief search of the “very small room.” Officer Byerly was in the hotel room for “a very short time.... [¶]... approximately, a minute or so.” Officer Viellemaringe saw Officer Byerly while he was in the room.
Officer Viellemaringe also testified that within five minutes after defendant dropped the paper towel in the lobby, Officer Viellemaringe observed that the paper towel appeared to contain a large rock of cocaine. The cocaine weighed 16.85 grams. A search of defendant also recovered $887 in small denominations. Officer Viellemaringe opined that the rock cocaine was possessed for the purpose of sale.
B. Procedural Background
Defendant had pled guilty to possessing cocaine base for sale, a violation of Health and Safety Code section 11351.5, for which offense he was sentenced in 2007 to six years in state prison. The trial court suspended the sentence, and placed defendant on probation for three years.
In 2008, the District Attorney of Los Angeles County requested that defendant’s probation be revoked. The trial court revoked defendant’s probation and set a probation violation hearing.
While the probation violation hearing was still proceeding, defendant’s counsel stated, “It has come to my attention that there is Brady evidence that has not been turned over to me. Apparently, the officer involved in this case, Buyerly [sic], is suspended and is being investigated, as well as Geoghegan, the second officer who was involved in this case. I have not been provided any—any report—any Brady material as regards to that investigation because it clearly affects this hearing.” Defendant’s counsel stated that she had information that the investigation concerns false and misleading statements made by Officer Byerly.
The prosecutor responded, “As the court would recall, approximately a week ago, we specifically had the discussion regarding Buyerly [sic] and Geoghegan, and that was disclosed to [defendant’s counsel] in the presence of Your Honor, and I want the record to reflect that. There was no dereliction of duty on my part. It was disclosed. [¶] As to the nature of the suspension, I am not privy to it. It is the subject of an ongoing police investigation. I don’t have that information, and that information will not, nor will it be, released to me. Even upon my request, it will not be released to me. The appropriate procedure in this case is to run a Pitchess motion.... So there has been no dereliction of duty on my part, and I want the record to reflect that.”
Thereafter, defendant filed a pretrial discovery motion pursuant to Pitchess, supra, 11Cal.3d 531 and Brady, supra, 373 U.S. 83, seeking the discovery of confidential personnel records for Officers Byerly, Geoghegen, and Viellemaringe. The trial court found by a preponderance of the evidence that defendant was in violation of probation, but the trial court granted defendant’s motion to reopen the probation violation hearing because his discovery motion was scheduled to be heard later.
Defendant previously filed a motion for pretrial discovery seeking confidential personnel information for Officer Byerly. We grant defendant’s motion to augment the record with that motion.
At the hearing, the trial court granted defendant’s discovery motion, and ordered an in camera review of the personnel records of Officers Byerly, Geoghegen, and Viellemaringe regarding alleged acts of dishonesty and planting of evidence. After conducting an in camera review of the documents presented by the custodian of records, the trial court ordered the production of witness contact information regarding one administrative complaint submitted by the LAPD that Officers Byerly and Geoghegan filed a false report. The trial court held that its ruling that defendant violated probation stands.
Defendant filed a supplemental discovery motion pursuant to Pitchess, supra, 11Cal.3d 531 and Brady, supra, 373 U.S. 83, requesting verbatim copies of all statements made by the persons who either filed complaints about officers Byerly and Geoghegan, or who were interviewed during the investigation of such complaints. Defendant filed the supplemental motion because defendant’s investigator contacted the witnesses whose identities were ordered disclosed, but they had refused to answer the investigator’s questions. The trial court denied the supplemental motion because it found that the official information privilege under Evidence Code section 1040 was applicable. Defendant does not challenge this finding.
DISCUSSION
A. Brady Information
Defendant contends that the prosecutor’s failure to disclose information regarding the internal investigation of Officers Byerly and Geoghegan for making false statements violated defendant’s federal constitutional due process right to a fair probation proceeding as set forth in Brady, supra, 373 U.S. 83. We do not agree.
1. General Principles
The prosecution has a duty to disclose evidence favorable to an accused, “the suppression [of which]... violates due process where the evidence is material either to guilt or to punishment....” (Brady, supra, 373 U.S. 83, 87.) The prosecutor’s duty to disclose Brady material is applicable even though defendant has not requested it. (Strickler v. Greene (1999) 527 U.S. 263, 280-282.)
“Responsibility for Brady compliance lies exclusively with the prosecution, including the ‘duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case.’ (Kyles v. Whitley (1995) 514 U.S. 419, 437 [115 S.Ct. 1555, 1567, 131 L.Ed.2d 490].)” (In re Brown (1998) 17 Cal.4th 873, 878-879.) “Courts have... consistently ‘decline[d] “to draw a distinction between different agencies under the same government, focusing instead upon the ‘prosecution team’ which includes both investigative and prosecutorial personnel.”’ [Citation.] ‘A contrary holding would enable the prosecutor “to avoid disclosure of evidence by the simple expedient of leaving relevant evidence to repose in the hands of another agency while utilizing his access to it in preparing his case for trial, ” [citation].’ [Citations.]” (In re Brown, supra, 17 Cal.4th p. 879.) “The scope of the prosecutorial duty to disclose encompasses exculpatory evidence possessed by investigative agencies to which the prosecutor has reasonable access. [Citation.]” (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1315.)
Evidence is material under Brady, supra, 373 U.S. 83, if there is a reasonable probability that its disclosure would have produced a different verdict. (Strickler v. Greene, supra, 527 U.S. at pp. 280-282.) Materiality is not measured under a sufficiency of the evidence standard; “the question is whether ‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ [Citation.]” (Id. at p. 290.) “[T]he Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense. [Citation.]” (Kyles v. Whitley, supra, 514 U.S. at pp. 436-437.)
2. Discussion
Defendant contends that the prosecutor violated Brady, supra, 373 U.S. 83 by not disclosing information from the investigation of Officers Byerly and Geoghegan because the LAPD is part of the prosecution team, and therefore, the information was constructively in his possession. The prosecutor, however, advised defendant that he did not have access to the investigation files because the investigation was ongoing, and that the appropriate procedure for defendant to attempt to obtain the information was for defendant to file a motion under Pitchess, supra, 11 Cal.3d 531 seeking confidential personnel information. The Los Angeles City Attorney, counsel for the LAPD, confirmed that the investigation was ongoing and confidential. Also, the trial court ruled that the information from the investigation file was privileged under Evidence Code section 1040, and defendant does not challenge this finding.
The prosecution generally does not have the right to possess, and does not have access to, a peace officer’s personnel files in the absence of a prosecutor-initiated Pitchess motion. (Alford v. Superior Court (2003) 29 Cal.4th 1033; People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1475.) The prosecutor did not have “access” to the investigation (Barrett, supra, 80 Cal.App.4th at pp. 1314-1315; In re Brown, supra, 17 Cal.4th at p. 879), and, therefore, he did not violate his obligations under Brady, supra, 373 U.S. 83. Here the prosecutor said that he could not obtain the information from the LAPD on the ongoing investigation.
In addition, defendant has not established that the investigation information was material. Defendant contends that information of prior acts by Officers Byerly and Geoghegan of dishonesty or evidence fabrication is material because it “might have been helpful to [defendant] in his cross-examination and impeachment of Officer Vieillemaringe” and therefore Officer Viellemaringe’s “hearsay testimony would have been markedly less credible.” Defendant argues that “It is... reasonably probable under the circumstances of this case that had information been disclosed... a different result would have occurred at the... probation violation proceeding.”
Defendant only contends, however, that the material could be used to impeach Officer Vieillemaringe based on “hearsay” evidence. Defendant does not contend it could have used the material in some other way. It is “the credibility of a witness” that may be impeached. (Evid. Code, § 780; italics added.) Witnesses who take the stand put their character for honesty and veracity in issue. (People v. Taylor (1986) 180 Cal.App.3d 622, 631.) Officers Byerly and Geoghegan did not testify and, therefore, were not subject to impeachment. In addition, Officer Viellemaringe’s character for honesty and veracity could not be challenged by someone else’s prior bad acts.
Also, Officer Vieillemaringe could not be impeached regarding the truth of Officer Byerly’s statement to him of the contents of the paper towel because Officer Vieillemaringe’s testimony was not admitted for the truth of the matter asserted. It was admitted for the purpose of Officer Viellemaringe’s state of mind in pursuing the investigation. “Hearsay statements are only those ‘offered to prove the truth of the matter stated.’ (Evid. Code, § 1200.)” (In re Clara B. (1993) 20 Cal.App.4th 988, 997.) Inadmissible hearsay may be admitted for a nonhearsay purpose relevant to an issue in dispute. (People v. Davis (2005) 36 Cal.4th 510, 535-536; People v. Turner (1994) 8 Cal.4th 137, 189-190.)
Defendant has not established that evidence of the alleged prior acts by Officers Byerly and Geoghegan of dishonesty or evidence fabrication could “reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” (Strickler v. Greene, supra, 527 U.S. at p. 290.) It therefore was not material under Brady, supra, 373 U.S. 83.
B. Pitchess Discovery
Defendant requests that we conduct an independent review of the January 20, 2009, in camera proceedings to determine whether the custodian failed to disclose potentially discoverable personnel records to the trial court, and whether any documents were incorrectly withheld by the trial court. There was no in camera proceeding concerning the supplemental discovery motion. (See fn. 3, supra.)
1. General Principles
“Evidence Code sections 1043 through 1045 codify Pitchess [, supra, ]11 Cal.3d 531.... ‘The statutory scheme carefully balances two directly conflicting interests: the peace officer’s just claim to confidentiality, and the criminal defendant’s equally compelling interest in all information pertinent to the defense.’ (City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 53 [19 Cal.Rptr.2d 73, 850 P.2d 621].) The legislation achieves this balance primarily through a procedure of in camera review, set forth in section 1045, subdivision (b), whereby the trial court can determine whether a police officer’s personnel files contain any material relevant to the defense, with only a minimal breach in the confidentiality of that file.” (People v. Jackson (1996) 13 Cal.4th 1164, 1220.)
“To initiate discovery, the defendant must file a motion supported by affidavits showing ‘good cause for the discovery, ’... [¶] If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance. [Citations.]” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019; People v. Gaines (2009) 46 Cal.4th 172, 179.)
As a general rule, in order to safeguard peace officers’ rights of confidentiality, only limited information is disclosed to defendant, often “only the name, address and phone number of any prior complainants and witnesses and the dates of the incidents in question.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84. (Santa Cruz).) This, however, is with the understanding that if the information disclosed is insufficient to enable the defendant to prepare for a fair trial, such as if the witnesses are unavailable or uncooperative, further discovery may be justified. (Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107, 1112-1113; Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 828-829.)
We review the trial court’s ruling on the Pitchess motion for abuse of discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1286; see also People v. Hughes (2002) 27 Cal.4th 287, 330 [“A trial court’s ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion”].)
2. In Camera Review
The trial conducted an in camera hearing to review certain personnel records of Officers Byerly, Geoghegan, and Viellemaringe to determine whether the records contained any discoverable information concerning dishonesty or planting of evidence by the officers. Citing People v. Mooc (2001) 26 Cal.4th 1216, 1226-1229, defendant requests that we conduct an independent review of the in camera proceedings to determine whether the custodian failed to disclose potentially discoverable personnel records to the trial court, and whether any documents were incorrectly withheld by the trial court. Respondent agrees.
“When a trial court concludes a defendant’s Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer’s personnel files, the 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. (Santa Cruz, supra, 49 Cal.3d at p. 84.) A law enforcement officer’s personnel record will commonly contain many documents that would, in the normal case, be irrelevant to a Pitchess motion, including those describing marital status and identifying family members, employment applications, letters of recommendation, promotion records, and health records. (See Pen. Code, § 832.8.) 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. Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the locus of decision making is to be the trial court, not the prosecution or the custodian of records. The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant’s Pitchess motion. A court reporter should be present to document the custodian’s statements, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record. (See People v. Jackson, supra, 13 Cal.4th at p. 1221, fn. 10 [explaining that this court ‘reviewed the sealed record of the in camera proceeding’].)” (People v. Mooc, supra, 26 Cal.4th at pp. 1228-1229.)
“The trial court should then make a record of what documents it examined before ruling on the Pitchess motion. Such a record will permit future appellate review. If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party’s ability to obtain appellate review of the trial court’s decision, whether to disclose or not to disclose, would be nonexistent. Of course, to protect the officer’s privacy, the examination of documents and questioning of the custodian should be done in camera in accordance with the requirements of Evidence Code section 915, and the transcript of the in camera hearing and all copies of the documents should be sealed. (Footnote omitted.) (See People v. Samayoa (1997) 15 Cal.4th 795, 825 [64 Cal.Rptr.2d 400, 938 P.2d 2] [after ruling on the Pitchess motion, ‘[t]he magistrate ordered that all remaining materials be copied and sealed’].)” (People v. Mooc, supra, 26 Cal.4th at pp. 1229-1230.)
As previously noted, following the grant of defendant’s Pitchess motion, the trial court held an in camera review of documents. The sealed court reporter’s transcript of the trial court’s in camera review was included in the record on appeal. However, copies of the documents reviewed by the trial court, but not disclosed to defendant, were not included. After reviewing that transcript we requested that the record be augmented to include copies of the materials reviewed by the trial court that were not disclosed to defendant. We appointed the trial court to act as referee to conduct record correction proceedings.
Pursuant to that appointment, the trial court conducted a further in camera proceeding, and thereafter filed with this court a report concerning that further proceeding. The sealed reporter’s transcript of that proceeding was also lodged with this court, along with copies of the documents reviewed by the trial court at the record correction proceeding.
We have reviewed the report and findings of the trial court, the transcript of the record correction proceeding, and all the documents filed under seal with this court that were reviewed by the trial court at the record correction proceeding. Based on that review, as well as our prior review of the original in camera proceeding, we conclude that the custodian of records did not fail to disclose potentially discoverable personnel records to the trial court. The custodian of the records was obligated to provide all documents potentially relevant to a defendant’s Pitchess request to the trial court for in camera review; the custodian was not obligated to provide irrelevant documents. (People v. Mooc, supra, 26 Cal.4th at pp. 1228-1229.) Here, the custodian was placed under oath at the commencement of the in camera hearing, and we have no reason to believe that the custodian did not fulfill his obligation to provide to the trial court all of potentially relevant documents. We also conclude that the trial court did not abuse its discretion by withholding any discoverable personnel records that it reviewed.
DISPOSITION
The judgment is affirmed.
We concur: KRIEGLER, J., KUMAR, J.
Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.