Opinion
A148181
01-25-2018
THE PEOPLE, Plaintiff and Respondent, v. MARCUS CHARLES BIDDLE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR307328)
A jury convicted appellant Marcus Charles Biddle of possession for sale of methamphetamine in violation of Health and Safety Code section 11378, for which he was placed on three years formal probation, with 234 days to be served in county jail. Biddle appeals, challenging the admission of a confession he made to the police on grounds it was involuntary. He also requests that this court conduct an independent review of the trial court's denial of his Pitchess motion following an in camera hearing. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) We see no error in the admission of his confession but we find the record inadequate to conduct meaningful review of the court's denial of the Pitchess motion and will conditionally reverse on that basis.
I. BACKGROUND
While driving with his wife, Karla, as a passenger, Biddle was pulled over in a routine traffic stop by Vacaville Police Officer Aaron Potter. Upon a check of Biddle's driver's license status, Officer Potter found that Biddle's license was suspended. After ordering him out of the car, Officer Potter conducted a patdown search of Biddle with his consent. Officer Potter found a bag containing a small amount of methamphetamine in Biddle's back pocket, which led to his arrest. Biddle's wife was also arrested after a search uncovered two bags of methamphetamine concealed on her person; a third "twistie" containing methamphetamine was discovered during a postarrest search while she was in custody. The officers then searched Biddle's vehicle and discovered a pipe containing methamphetamine residue, an additional bag of methamphetamine in Biddle's wallet, and a digital scale, which was located inside a man's shoe in the trunk of the vehicle and contained traces of a white, powdery substance. Officer Potter informed Biddle he was under arrest for possession of methamphetamine for sale.
Officer Potter asked Biddle if he would be willing to speak to a narcotics detective about the case. Biddle expressed interest in "work[ing] off" his case and agreed to participate in an informant program. At the jail, narcotics Detective Greg Eisert read Biddle his Miranda rights, which he waived. Detective Eisert then initiated separate conversations with Biddle and his wife individually, while they were held in separate jail cells. To have a chance at leniency, Detective Eisert initially told Biddle he would need to provide information leading to the arrest of three individuals involved in illegal drug sales. In these discussions, Detective Eisert at some point advised Biddle that, together, he and Karla would have to provide six names. His wife refused to cooperate, however, and because of Karla's noncooperative stance, Detective Eisert told Biddle he would have to provide all six names.
See Miranda v. Arizona (1966) 384 U.S. 436.
Detective Eisert testified he was not the detective assigned to the case and all information regarding the case was being forwarded to a different narcotics detective. If Biddle wanted to secure informant protection, he was responsible for following up with that detective upon his release from custody to provide additional information, which he did not do.
Sometime during his conversation with Detective Eisert, which lasted approximately an hour, Biddle volunteered that he and Karla had fallen on hard times and were selling small amounts of methamphetamine to supplement their income. The record is unclear as to the timing of this confession. Detective Eisert testified he did not recall if the statement was made before or after the discussion about the information required to participate in the informant program, but it is uncontested that Biddle made it after he waived his Miranda rights. Under the cooperation arrangement he had discussed with Detective Eisert, Biddle eventually provided some information, though not enough to satisfy Eisert's request for six names. After Biddle proved unable or unwilling to provide the requested names, charges were filed against him alleging possession of methamphetamine for sale.
At the beginning of trial, Biddle moved in limine to exclude the incriminating statements he made to Detective Eisert and the court held an Evidence Code section 402 hearing on the motion. During the hearing, the court heard testimony from Officer Potter and Detective Eisert. The trial court ruled that Biddle's confession was admissible because he had waived his Miranda rights, volunteered to speak with Detective Eisert about the informant program, decided to participate, then—only after his wife refused—elected not to participate after following through with some but not all of the requested names. In so ruling, the trial court expressly found Biddle's incriminating statements were not made in response to a question asked by Detective Eisert, but rather were volunteered. Biddle did not testify at the Evidence Code section 402 hearing or during trial.
II. DISCUSSION
A.The Trial Court Properly Admitted Biddle's Confession
An involuntary confession is not admissible at trial. (People v. Carrington (2009) 47 Cal.4th 145, 169 (Carrington).) The voluntariness of a confession is determined by a totality of the circumstances. (People v. Linton (2013) 56 Cal.4th 1146, 1176 (Linton).) " 'The test for determining whether a confession is voluntary is whether the defendant's "will was overborne at the time he confessed." ' " (People v. McWhorter (2009) 47 Cal.4th 318, 346-347 (McWhorter).) " 'A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence.' " (Id. at p. 347.)
The prosecution bears the burden of proving a confession is voluntary by a preponderance of the evidence. (Carrington, supra, 47 Cal.4th at p. 169.) " ' "On appeal, the trial court's findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court's finding as to the voluntariness of the confession is subject to independent review." ' " (Ibid.) "In the absence of conflicting testimony, we 'examine the uncontradicted facts surrounding the making of the statements to determine independently whether the prosecution met its burden and proved that the statements were voluntarily given without previous inducement, intimidation or threat.' " (People v. Cahill (1994) 22 Cal.App.4th 296, 310 (Cahill).)
In analyzing the voluntariness of Biddle's confession, the Attorney General relies primarily on People v. Tully (2012) 54 Cal.4th 952. There, defendant Tully was arrested for possession of methamphetamine. (Id. at p. 975.) He initially invoked his Miranda rights, but later reinitiated the conversation by expressing that he did not want to go to jail. (Id. at pp. 976, 985.) Tully expressed interest in working off his case by becoming a police drug informant. (Id. at p. 976.) While waiting for the narcotics detective to arrive and after having agreed to become an informant, he admitted to the arresting officer that he broke into cars and houses to support his drug habit. (Ibid.) Affirming a determination of voluntariness, the California Supreme Court pointed out that, after being properly Mirandized, Tully blurted out his confession in the course of a conversation with the officer without being asked a specific question, and the officer's statements were not part of any inducement for Tully to become an informant. (Id. at p. 985-986.) We agree that Tully controls here.
Biddle contends his confession was involuntary because Detective Eisert's request for three names was an express promise of leniency. We reject that contention. Biddle was told he might be released from jail and his charges might not be forwarded to the District Attorney's Office if the names he provided led to arrests. But there is no evidence in the record of an express agreement which would have entitled Biddle to leniency. In fact, it was the uncontroverted testimony of both Officer Potter and Detective Eisert that there was merely a possibility, not a promise, of leniency, depending on whether the information Biddle provided proved useful. Further, as in Tully, Biddle waived his Miranda rights and made an unsolicited confession. There was no express or implied promise that any statements Biddle made during the interview would not be used against him at trial. In fact, the Miranda warnings he received advised him of just the opposite.
To be sure, a statement can be rendered involuntary if induced by " 'implied promises' " of leniency. (McWhorter, supra, 47 Cal.4th at p. 347.) "The offer or promise of such benefit need not be expressed, but may be implied from equivocal language not otherwise made clear." (Cahill, supra, 22 Cal.App.4th at p. 312.) Biddle contends there was such an implied promise here. But the implied promise cases cited by Biddle all involve assurances made by officers when encouraging a defendant to confess to or give information about his own role in the crime for which he was arrested as a quid pro quo for something that could be reasonably understood as a commitment to leniency. (See Cahill, supra, 22 Cal.App.4th at pp. 303-310, 314-315; see also Linton, supra, 56 Cal.4th at p.1177; Carrington, supra, 47 Cal.4th at p. 170.) Here, Detective Eisert did not ask Biddle to confess to selling methamphetamine; nor did he ask a question of Biddle or tell him something that would make a reasonable person think that confessing would lead to leniency. Moreover, the possibility of leniency was dependent on the usefulness of information he provided about others, not himself. There was no promise here—express or implied—that vitiates the voluntariness of Biddle's confession.
We see an additional reason why Biddle's attack on voluntariness of his confession lacks merit. " '[C]oercive police activity is a necessary predicate to establish an involuntary confession . . . .' " (McWhorter, supra, 47 Cal.4th at p. 347.) There was no such coercive police conduct in this case. Biddle argues that Detective Eisert "moved the goalposts" when he increased the necessary information from three to six names, and that this was a form of deception which renders a confession involuntary. In support of this argument, he cites Linton, supra, 56 Cal.4th at pages 1176-1177, but offers no analysis of the facts there (id. at pp. 1155, 1169 [in the course of initial interview by investigating officers, capital defendant who was suspected and eventually convicted of strangling and killing 12-year-old girl, was assured by officers he " 'wouldn't . . . get in trouble' " if he admitted sexual contact with victim because " '[s]he's no longer with us.' "]). Even if deception occurred, deception alone is generally not enough to render a confession involuntary unless it occurs in connection with a promise of leniency. (Cahill, supra, 22 Cal.App.4th at p. 315.) Here, there cannot have been a change in the terms of any "agreement" because there is no evidence that there was a finalized agreement to begin with. As noted above, Eisert and Potter repeatedly testified that they were offering only a possibility of leniency, and could not make any promises until the information Biddle provided was analyzed and proved to be useful.
While, to Biddle, it may have seemed somewhat unfair for Detective Eisert to increase the amount of information required from him after his wife refused to cooperate, that does not prove coercive police activity where, as here, and as in Tully, a defendant voluntarily engages in dialogue with law enforcement officers after being Mirandized. Biddle states in his opening brief that the admissions he made regarding his involvement with drug sales were "[i]ncluded within his personal narrative" and that the abrogation of the initial agreement came after he had already given his confession. Even accepting the accuracy of Biddle's timeline concerning the sequence of events, the key moment in time is when he agreed to cooperate. At that point, Biddle offers nothing but an unsupported allegation that Detective Eisert made a promise while dishonestly intending to renege on his word. This is the inference Biddle would have us draw from Detective Eisert's handling of the situation, but the trial court considered the evidence and impliedly found otherwise. There is substantial evidence to support its implied finding.
Assuming arguendo there was some kind of deceptive conduct that might be said to rise to the level of coercion, coercive police conduct must be the " 'motivating cause' " of the confession before it will vitiate voluntariness. (Linton, supra, 56 Cal.4th at p. 1176.) In Tully, supra 54 Cal.4th at page 976, for example, the defendant had made admissions voluntarily before the officers involved there committed not to use the admissions against him. The trial court held the confession was not induced by the officer's promise, because "the statements were gratuitous and untethered to any promise made by" the officer. (Id. at p. 986.) Likewise here, the only way Biddle could argue that Eisert's deception induced his confession would be to claim that Eisert knew from the outset that he was going to end up insisting upon six names but deceived Biddle into thinking he would only need to provide three names. As noted above, however, the court impliedly found the evidence does not support that inference.
Accordingly, for all of the above reasons, we conclude the prosecution met its burden to show Biddle's confession was voluntary.
B. The Trial Court Failed to Conduct an Adequate Pitchess Review
Pitchess establishes that "a criminal defendant [can] 'compel discovery' of certain relevant information in the personnel files of police officers by making 'general allegations which establish some cause for discovery' of that information and by showing how it would support a defense to the charge against him." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019; see Pen. Code, §§ 832.7, 832.8; Evid. Code, §§ 1043-1045.) Pursuant to Pitchess discovery procedure, the moving party must file a written motion describing the type of records sought, supported by "[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records." (Evid. Code, § 1043, subd. (b)(3); accord, People v. Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc).)
If the superior court finds good cause for the discovery and orders production of documents from an officer's personnel file, it must conduct an in camera review of all documents " 'potentially relevant' " to the defendant's motion (Mooc, supra, 26 Cal.4th at p. 1226) or "potentially responsive" to the defendant's specific request (id. at p. 1230) on which Pitchess discovery has been ordered. The court must then determine whether any documents are relevant to the case, typically disclosing only identifying information concerning those who filed complaints against the officer. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1019; Mooc, supra, 26 Cal.4th at p. 1226.) The court must make a record of what documents it has examined to permit appellate review. (Mooc, supra, 26 Cal.4th at pp. 1229-1230.) The court may preserve the record by photocopying the documents and placing them in a confidential file, preparing a sealed list of the documents it considered, or may simply "state for the record what documents it examined." (Id. at p. 1229.)
In this case, the court granted Biddle's Pitchess motion for discovery related to Detective Eisert on issues of "false reporting or fabrication." We have reviewed the sealed transcript of the in camera Pitchess hearing and find the procedure employed wanting. No documents from the personnel files are contained in the sealed record. The court did place the custodian of records under oath before conducting the hearing. (See People v. White (2011) 191 Cal.App.4th 1333, 1339-1340.) But the custodian then announced there were no responsive documents from Detective Eisert's files. The custodian reported only one document that was potentially responsive. He briefly described the substance of that document and the court, without reviewing the document, determined it need not be disclosed. The court did not press him for further information and did not review any documents. The court did not require the custodian to describe the documents from the personnel file that were withheld, and asked for no explanation of why they were deemed nonresponsive.
Biddle's wife, Karla, also made a Pitchess motion which was granted as to Officer Potter on issues of false reporting and evidence fabrication. In considering documents from Officer Potter's personnel file, the custodian of records produced no documents and the colloquy was brief and without elaboration.
A defendant is entitled to "meaningful appellate review of the court's decision not to disclose any evidence in response to his Pitchess motion." (Mooc, supra, 26 Cal.4th at p. 1228.) Thus, on appeal, this court must review the "record of the documents examined by the trial court" and determine whether the trial court abused its discretion in refusing to disclose relevant contents of the officer's personnel file. (Id. at p. 1229; see People v. Hughes (2002) 27 Cal.4th 287, 330.)
The Supreme Court in Mooc made clear that the custodian need not produce in court the officer's entire personnel file. (Mooc, supra, 26 Cal.4th at p. 1230.) "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. . . . 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." (Mooc, supra, 26 Cal.4th at p. 1229, italics added.)
While Mooc suggested the custodian "should be prepared" to identify withheld documents (Mooc, supra, 26 Cal.4th at p. 1229), it is the trial court that must put him or her to that test. In a case such as this, where "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.' " (People v. Guevara (2007) 148 Cal.App.4th 62, 69, italics added.) While Guevara again stated the requirement as if it were a duty of the custodian of records, it of course falls to the trial court to make sure the custodian abides by that duty. "It is for the court to make not only the final evaluation [of discoverability] but also a record that can be reviewed on appeal." (Ibid.) This may require some probing and prompting if adequate descriptions and explanations are not immediately offered.
Although the Supreme Court has not weighed in on whether the procedure set forth in Guevara is required after Mooc (see People v. Fuiava (2012) 53 Cal.4th 622, 648, fn. 6), we believe it is a practical necessity to meaningful appellate review. (Cf. People v. Nguyen (2017) 12 Cal.App.5th 44, 49-51 (unanimous conc. opn. of Bedsworth, Acting P.J.) [criticizing current Pitchess practices as making meaningful review impossible].) The Courts of Appeal have treated the Guevara procedure as mandatory and have conditionally reversed in cases where the record was as thin as this one. (See Sisson v. Superior Court (2013) 216 Cal.App.4th 24, 37-40 [granting writ of mandate to compel compliance with Guevara procedure]; People v. Wycoff (2008) 164 Cal.App.4th 410, 414-416 (Wycoff) [conditional reversal by same District and Division that decided Guevara].)
Fuiava held a record similar to the one in our case was adequate where the Pitchess document review was held before Mooc was decided. (Fuiava, supra, 53 Cal.App.4th at p. 648.) The Court took no position on whether the same would be true post-Mooc, citing Guevara. (Fuiava, at p. 648, fn. 6.) --------
Without a record of which documents were contained in the personnel files and why none were discoverable, it is not possible for us to conduct the kind of "meaningful appellate review" to which Biddle is entitled. (Mooc, supra, 26 Cal.4th at p. 1228.) We will therefore conditionally reverse the judgment and remand for a new Pitchess hearing. If the court again decides that no documents are discoverable under Pitchess, an appropriate record shall be made, and the judgment may be reinstated. If Biddle wishes to challenge that determination, an appeal may be taken from the reinstated judgment. (Wycoff, supra, 164 Cal.App.4th at pp. 412, 415.) If the court determines that Biddle was entitled to some Pitchess discovery, it shall provide that discovery and must then conduct proceedings to give Biddle an opportunity to demonstrate prejudice, i.e., a reasonable probability that the outcome would have been different had the information been disclosed earlier. (People v. Gaines (2009) 46 Cal.4th 172, 176, 181.) If the failure to provide discovery is deemed nonprejudicial, the judgment may be reinstated. (Id. at pp. 181-182.)
III. DISPOSITION
The judgment is conditionally reversed. The cause is remanded to the trial court with directions to hold a new hearing on Biddle's Pitchess motion in conformance with the procedures described in this opinion. If the trial court finds there are discoverable records, they shall be produced and the court shall conduct such further proceedings as are necessary and appropriate. If the court finds there are no discoverable records, or that there is discoverable information but Biddle cannot establish that he was prejudiced by the denial of discovery, the judgment shall be reinstated as of that date.
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.