Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. Nos. SCD189563, 192589 Bernard E. Revak, Judge.
IRION, J.
A jury convicted Louis Jesus Comaduran of counts arising out of a home invasion robbery, a high-speed police chase and an incident in jail. Based on the home invasion robbery, Comaduran was convicted of five counts of first degree residential robbery with gun use allegations. (Pen. Code, §§ 211, 212.5, subd. (a).) Based on the high-speed police chase, Comaduran was convicted of one count of evading an officer with reckless driving (Veh. Code, § 2800.2), two counts of hit and run (Veh. Code, § 20002), one count of attempted murder upon a peace officer (§§ 664, subd. (e), 187, subd. (a)) and one count of resisting an executive officer (§ 69). Based on the jail incident, Comaduran was convicted of one count of resisting an executive officer. (Ibid.) The jury also found that Comaduran was sane during the high-speed police chase. The trial court sentenced Comaduran to an indeterminate term of life with the possibility of parole and to a determinate term of 74 years eight months.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Comaduran argues that (1) the charges arising from the three separate incidents were improperly joined together for trial; (2) the trial court erred in admitting evidence that three witnesses to the home invasion robbery identified him in a photographic lineup; and (3) the trial court abused its discretion in denying his motion for discovery of the personnel files of the correctional officers involved in the jail incident. As we will explain, we conclude that Comaduran's arguments lack merit, and accordingly we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
A home invasion robbery, perpetrated by two men, occurred in the early morning hours of March 1, 2005, in Coronado. The men entered the house through the second-floor balcony door of a bedroom where Adrianne Lewis (Lewis) and George James were asleep. James and Lewis woke up, and one of the men, later identified by witnesses as Comaduran, pressed a gun to Lewis's head. Comaduran led Lewis out of the bedroom at gunpoint to look for a safe, and they encountered Lewis's teenaged daughter Hannah Lewis (Hannah) with another resident, Keith Pleasant, in the living room. Pleasant managed to flee outside and call 911. Comaduran then entered a bedroom occupied by Greg Beck, spoke with him, and took his laptop computer and Palm Pilot. After Comaduran and his associate gathered computer equipment, cell phones, wallets, watches and jewelry from inside the house, they left.
Police arrived in response to the 911 call. They located one suspect, who was not Comaduran, crouching behind a car. Police observed another man running away, but they were not able to apprehend him.
Comaduran, who was a parolee at large, was identified as a suspect in the Coronado robbery. On March 3, 2005, Lewis, Hannah and Beck were separately shown a photographic lineup containing a photograph of Comaduran, and all three witnesses identified him as a perpetrator. Comaduran's fingerprints were found on a car that was abandoned at the scene of the robbery.
On the afternoon of March 8, 2005, law enforcement officers were conducting surveillance of Comaduran at his address in Chula Vista when they observed Comaduran drive away in a car. The officers followed Comaduran. Apparently aware that he was being followed, Comaduran ran a red light, pushed a bicyclist out of the way and drove onto the freeway, heading north. The officers followed him with their red lights and siren activated. As Comaduran continued to flee, other law enforcement vehicles took over the chase and were joined by a police helicopter. Comaduran drove at speeds of up to at least 115 miles per hour from Chula Vista to the Carmel Mountain Road exit of Interstate 15, which is a distance of approximately 25 miles. Back on city streets, Comaduran ran into the rear of an occupied car as he continued to speed away from the pursuing police officers. Comaduran made a turn across the median into the opposite lanes of traffic. At that point, Comaduran aimed a gun at San Diego Police Officer Stephen Thorn, firing approximately three rounds. Officer Thorn was not injured. Another police officer fired shots at Comaduran's car. Comaduran's car became disabled. The officers obtained control over Comaduran and took him into custody.
In a single information, Comaduran was charged with crimes arising out of both the March 1, 2005 Coronado robbery and the March 8, 2005 high-speed police chase. For the Coronado robbery, Comaduran was charged with five counts of first degree residential robbery (§§ 211, 212.5, subd. (a)); for the March 8, 2005 high-speed chase, he was charged with evading an officer with reckless driving (Veh. Code, § 2800.2), attempted murder upon a peace officer (§§ 664, subd. (e), 187, subd. (a)), resisting an executive officer (§ 69), and two counts of assault with a deadly weapon (§ 245, subd. (a)(1)).
On June 26, 2005, while he was jailed, Comaduran was involved in an altercation with correctional officers. Deputy Sheriff David Guzman and Deputy Sheriff James Fukushima were working at the jail where Comaduran was being held. While Deputy Guzman was performing a security check of the jail cells, Comaduran was standing outside his cell, mopping his flooded cell floor with a mop that had been provided to him for that purpose. Comaduran asked Deputy Guzman for towels, presumably to dry the flooded floor. Deputy Guzman noticed that Comaduran already had towels and told Comaduran that he was not going to give him towels because he didn't need them. Comaduran stepped in front of Deputy Guzman as he attempted to walk past, stating angrily and loudly, "You ain't fucking going anywhere, deputy, until I get my towels." While Deputy Fukushima ran to assist, Deputy Guzman ordered Comaduran to "lock it down," which meant to return to his cell, close the door and remain there. Comaduran did not comply, even when Deputy Guzman repeated the order. Comaduran clenched both of his fists and started walking toward Deputy Guzman and Deputy Fukushima. He stated, "I'll fuck you up if you don't give me my towels."
After Comaduran again refused to comply with orders to return to his cell, Deputy Guzman and Deputy Fukushima sprayed Comaduran's face with pepper spray. Deputy Guzman ordered Comaduran to lay on the floor, but he did not comply. When other officers started to arrive, Comaduran went inside his cell, and his cellmate attempted to close the cell door. Deputy Fukushima forced the door open. Comaduran continued to defy orders to get down on the floor, and started coming toward Deputy Guzman and Deputy Fukushima. The deputies forced Comaduran down to the floor and handcuffed him. As Comaduran was led away to the medical facility, he resisted and thrashed around, at one point succeeding in throwing himself to the ground.
Comaduran was charged in a separate case with a single count of resisting an executive officer arising out of the June 26, 2005 jail incident. He was arraigned after a preliminary examination and pleaded not guilty.
Neither the original information for the charge arising out of the June 26, 2005 jail incident nor the corresponding preliminary examination appear in the appellate record, but they are referred to in the parties' briefing.
The prosecutor brought a motion under section 954 to consolidate for trial all of the charges pending against Comaduran. Comaduran opposed that motion and brought motions to sever the charges arising out of each of the three separate incidents.
The trial court granted the prosecutor's motion to consolidate and denied Comaduran's motions to sever. The prosecutor filed an amended information that consolidated the charges concerning the jail incident with the charges concerning the residential robbery and the high-speed police chase.
Prior to trial, the trial court denied Comaduran's motion for discovery of the personnel files of Deputy Guzman and Deputy Fukushima.
The charges arising out of all three incidents were tried together. At trial, the jury heard evidence that Lewis, Hannah and Beck had identified Comaduran in a photographic lineup shown to them two days after the robbery. The jury convicted Comaduran of charges arising out of all three incidents.
On appeal, Comaduran challenges (1) the trial court's decision to hold a trial in which the charges arising out of all three incidents were tried together; (2) the trial court's admission of evidence that the three witnesses identified him in the photographic lineup; and (3) the trial court's denial of his motion for discovery of the personnel files of Deputy Guzman and Deputy Fukushima.
II
DISCUSSION
A. Comaduran's Challenge to the Joinder of the Charges Against Him for Trial
As we have explained, the trial court granted the prosecution's motion pursuant to section 954 to join together all of the charges pending against Comaduran in a single case, and it also denied Comaduran's motions to sever the charges for the purpose of trial. Comaduran challenges both of those rulings.
"Whether offenses properly are joined pursuant to section 954 is a question of law and is subject to independent review on appeal; the decision whether separate proceedings are required in the interests of justice is reviewed for an abuse of discretion." (People v. Cunningham (2001) 25 Cal.4th 926, 984 (Cunningham).) "We examine the record before the trial court at the time of its ruling to determine whether the court abused its discretion in denying the severance motion." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1120.)
1. Joinder of the Charges
We first address Comaduran's contention that the trial court erred in allowing the charges arising out of the residential robbery, the high-speed police chase and the jail incident to be joined together in the same case. Section 954 controls the issue.
"An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated . . .; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately . . . ." (§ 954, italics added.)
Comaduran argues that the standard set forth in section 954 was not met with respect to the joinder of all of the charges pending against him. He argues that the charges were not "connected together in their commission," nor were they "of the same class of crimes or offenses" within the meaning of section 954. As we will explain, we disagree.
First, we discuss whether the charges arising out of the Coronado robbery and the charges arising out of the high-speed police chase were "of the same class of crimes or offenses." Our Supreme Court has stated that "[r]obbery, murder and assault with intent to commit murder are all offenses of the same class. '[S]ection 954 permits joinder of all assaultive crimes against the person, all of them being considered "of the same class." ' " (People v. Walker (1988) 47 Cal.3d 605, 622.) Premised on this rule, the residential robbery charges (arising out the home invasion in Coronado) and the charges of assault with a deadly weapon and attempted murder of a peace officer (arising out of Comaduran's conduct during the high-speed police chase) are "of the same class of crimes or offenses" because they were all plainly assaultive crimes against the person. (§ 954.)
Second, we consider whether the Coronado robbery and the high-speed police chase were "connected together in their commission" within the meaning of section 954. Because the prosecution relied on the theory that Comaduran fled from law enforcement during the high-speed chase to avoid being apprehended for the residential robbery, the offenses were connected together in their commission. (See People v. Valdez (2004) 32 Cal.4th 73, 119 (Valdez) [charge of murder and charges involving an escape from jail while awaiting arraignment for the murder were "connected in their commission" when "[t]he apparent motive for the escape was to avoid prosecution for the murder"].)
Third, we consider whether, once the charges involving the high-speed chase and the Coronado robbery were properly joined together in the same case, it was proper for the trial court to also join the charge arising out of the jail incident. The charge arising out of the jail incident was identical to a charge pending against Comaduran arising out of the high-speed chase. Both incidents gave rise to a charge for resisting an executive officer. Because the charges are identical, they are self-evidently "offenses of the same class of crimes" and were properly joined. (§ 954; see Williams v. Superior Court (1984) 36 Cal.3d 441, 447 [charges of the identical offense (in that case, murder) constituted "offenses of the same class" within the meaning of section 954].)
We accordingly conclude that all of the charges pending against Comaduran were properly joined together pursuant to section 954.
2. Denial of Comaduran's Request for a Severance
Comaduran argues that even if all of the charges against him were properly joined under section 954, the trial court abused its discretion in denying his request to sever the trial on the charges arising out of the Coronado robbery from the charges arising out of the high-speed police chase.
Comaduran does not argue in his appellate briefing that prejudice arose when the charges arising out of the jail incident were tried together with the other charges against him. Accordingly, we do not address whether the trial court erred in refusing to sever the trial of the charge arising from the jail incident from the other charges pending against Comaduran.
When "the requirements for joinder [are] satisfied, defendant can predicate error only on a clear showing of potential prejudice" that would result from trying the charges together. (People v. Osband (1996) 13 Cal.4th 622, 666 (Osband).) "[T]he burden is on the party seeking severance to establish clearly that a substantial danger of prejudice exists requiring that the charges be tried separately." (Cunningham, supra, 25 Cal.4th at p. 985.)
"Denial of a severance may be an abuse of discretion" due to a clear showing of potential for prejudice "where (1) evidence related to the crimes to be tried jointly would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case[]; and (4) any one of the charges carries the death penalty." (Cunningham, supra, 25 Cal.4th at p. 985.) " '[T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible . . . in separate trials on the others. If so, any inference of prejudice is dispelled.' " (Osband, supra, 13 Cal.4th at p. 667.) "[C]omplete cross-admissibility is not necessary to justify the joinder of counts . . . ." (Cunningham, at p. 985, citation omitted.)
Here, we conclude that evidence of the high-speed chase was cross admissible with the evidence of the Coronado robbery, and accordingly Comaduran cannot establish that joining the charges arising from those two incidents created undue prejudice. Specifically, we conclude that evidence of the high-speed chase, in which Comaduran sought to elude apprehension by law enforcement, was admissible because it tended to show Comaduran's consciousness of guilt for the Coronado robbery. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1027 (Lewis and Oliver) [defendant's attempt to avoid arrest by fleeing from police was admissible to show consciousness of guilt].) Addressing a similar situation, in which the defendant was tried for robberies and a kidnapping at the same time he was tried for firing on police officers who were attempting to apprehend him for those crimes, the court in People v. Daly (1992) 8 Cal.App.4th 47, 50, 56, concluded that the defendant did not suffer prejudice from the joinder of the charges because the evidence of the shooting would be admissible to show consciousness of guilt for the robberies and kidnapping. Similarly, in Valdez, supra, 32 Cal.4th 73, where the defendant was tried for murder at the same time he was tried for attempting to escape from jail after being arrested on murder charges, our Supreme Court concluded that "defendant did not suffer undue prejudice as a result of the joinder because the evidence of both offenses was cross-admissible . . . . Evidence that defendant escaped would have been admissible in his separate murder trial as evidence indicating consciousness of guilt." (Id. at p. 120, citations omitted.)
Here, the same reasoning applies. The evidence of the high-speed chase would have been admissible to show consciousness of guilt in a separate trial on the residential robbery charges. Due to cross-admissibility, Comaduran could not have suffered undue prejudice by having the charges involving both incidents tried together. Accordingly, the trial court did not abuse its discretion in refusing Comaduran's request to sever the charges for trial.
In addition to arguing that the trial court abused its discretion in refusing to sever the charges against him, Comaduran argues that his constitutional right to due process was violated when the charges were tried together. His argument is based on the principle that " '[e]ven if the ruling [refusing to sever charges] was correct when made, we must reverse if defendant shows that joinder actually resulted in "gross unfairness," amounting to a denial of due process.' " (Osband, supra, 13 Cal.4th at p. 668.) However, as we have explained, the evidence of the high-speed chase was cross-admissible with the evidence of the residential robbery to show Comaduran's consciousness of guilt. Accordingly, Comaduran cannot establish that joinder resulted in gross unfairness sufficient to create a violation of his due process rights.
B. Comaduran's Challenge to the Admission of the Witnesses' Identifications of Him in a Photographic Lineup
At trial, the jury heard evidence that on March 3, 2005, police separately showed Lewis, Hannah and Beck a six-person photographic lineup, from which all three witnesses identified Comaduran as the perpetrator of the residential robbery.
Comaduran argues that the photographic lineup was impermissible suggestive because the background coloration in his photograph was "unique," his skin color appears "significantly darker" than the complexion of the men in the five other photographs, and his photograph was placed in the third position in the lineup when it was shown to each of the three witnesses. He argues that the trial court accordingly violated his right to due process by allowing the jury to hear evidence that the witnesses had identified him in the photographic lineup.
The Attorney General contends that Comaduran waived his right to argue that the photographic lineup was impermissible suggestive. As we will explain, we agree.
Prior to trial, defense counsel filed an in limine motion to exclude the witnesses' identification of Comaduran in the photographic lineup, arguing that "[t]he totality of the circumstances suggest that that photo lineups were administered in a way that violate [Comaduran's] due process rights and results in prejudice against him." However, during argument of the motion, defense counsel stated, "I am withdrawing that motion since it is now my intention to introduce those photographs into evidence." The record reflects no other objection by defense counsel to evidence concerning the photographic lineup.
"It is, of course, 'the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.' " (People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7; see also Evid. Code, § 353, subd. (a).) Applying that principle to the issue in this case, a defendant's failure to timely object in the trial court to a purportedly suggestive photographic lineup results in a waiver of the issue for appeal. (Cunningham, supra, 25 Cal.4th at p. 989; In re Michael L. (1985) 39 Cal.3d 81, 87-88.) Here, because defense counsel did not object to the admission of evidence concerning the photographic lineup and indicated that he intended to introduce such evidence himself, Comaduran has waived his right to argue on appeal that the evidence should not have been admitted.
Comaduran argues that defense counsel's withdrawal of the motion to exclude the evidence regarding the photographic lineup should not be considered a waiver of the issue because of alleged "misconduct on the part of the prosecution." Specifically, Comaduran contends that the testimony at trial was conflicting as to whether the photographic lineup shown to the witnesses was in black and white or in color, but that defense counsel's withdrawal of his objection was premised on the assumption that the photographic lineup was presented to the witnesses in black and white. We reject this argument because its factual foundation is flawed. As we will explain, the record contains no evidence suggesting that the photographic lineup in which the three witnesses identified Comaduran on March 3, 2005, was in color rather than in black and white.
In support of his assertion that the photographic lineup was in color when shown to the witnesses, Comaduran cites a statement made by the prosecutor during the testimony of James. The prosecutor stated to the trial court, "[T]his is a color copy of the photo lineup that [James] has with him . . . and [James] was shown this as a color copy, and the detective will testify to that." However, the evidence is clear that James was shown a photographic lineup only on March 1, 2005, and that photographic lineup was in color. The March 1, 2005 photographic lineup did not include a photo of Comaduran. Because the prosecutor was clearly referring to the March 1, 2005 photographic lineup as being in color, and that photographic lineup did not include an image of Comaduran, there is no support for Comaduran's argument that defense counsel was misled about whether the lineup from which the witnesses identified Comaduran was in color. Because there is no factual support for Comaduran's claim that prosecutorial misconduct caused defense counsel to withdraw his objection to admission of evidence concerning the photographic lineup, Comaduran is unable to avoid the waiver that was created when defense counsel elected not to object to the admission of the evidence.
C. Comaduran's Challenge to the Trial Court's Denial of His Motion for Discovery of the Correctional Officers' Personnel Files
Prior to trial, defense counsel filed a motion to obtain personnel records of Deputy Fukushima and Deputy Guzman that allegedly contain complaints of "excessive force, aggressive conduct, unnecessary violence, unnecessary force, racist remarks, false statements in reports, or any other evidence of or complaints of dishonesty." Comaduran argues that the trial court erred in denying his discovery motion.
"Trial courts are granted wide discretion when ruling on motions to discover police officer personnel records." (People v. Samayoa (1997) 15 Cal.4th 795, 827.) Consequently we may reverse on this ground only if the party appealing the trial court's ruling demonstrates that the court abused its discretion. (Lewis and Oliver, supra, 39 Cal.4th at p. 992.) As we will explain, we conclude that the trial court did not abuse its discretion in denying the discovery motion.
The trial court denied the motion on two separate grounds. First, the trial court relied on Evidence Code section 1046, which provides that in cases "in which the party seeking disclosure [of personnel records] is alleging excessive force by a . . . custodial officer . . . for conduct alleged to have occurred within a jail facility, the motion shall include . . . a copy of the crime report setting forth the circumstances under which the conduct is alleged to have occurred within a jail facility." The trial court explained that Comaduran's motion did not attach a copy of the crime report, and there was accordingly "noncompliance" with Evidence Code section 1046, which is "a requirement." Second, the trial court found "that there is not good cause stated to compel me to view the officers' confidential files," as required by Evidence Code section 1043.
As we will explain, we find the trial court's second ground for denying the motion to be dispositive, namely, Comaduran failed to establish good cause for the discovery that he sought. Accordingly, we will limit our discussion to that issue.
A defendant is entitled to discovery of a police officer's confidential personnel records if those files contain information that is potentially relevant to the defense. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537-538 (Pitchess); Evid. Code, §§ 1043-1045.) The discovery procedure has two steps. First, the defendant must file a motion seeking such records, containing affidavits "showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation." (Evid. Code, § 1043, subd. (b)(3).) If good cause is shown, the trial court then reviews the records in camera to determine whether any of them are relevant to the intended defense. (Id., § 1045, subd. (b).)
To show good cause a defendant must, through declarations, "propose a defense or defenses to the pending charges." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024 (Warwick).) Once that defense is identified, "a showing of good cause requires a defendant seeking Pitchess discovery to . . . articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events." (Id. at p. 1021.) The trial court should inquire, among other things: "Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense?" (Id. at p. 1027.)
To show good cause, a defendant must " 'establish a plausible factual foundation' " for the defense asserted and "must present . . . a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents." (Warwick, supra, 35 Cal.4th at p. 1025.) 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." (Id. at p. 1026.)
In support of the discovery motion, defense counsel submitted a declaration from Comaduran that described his version of events. According to Comaduran, while he was cleaning "sewage" off the floor in front of his cell, he was refused more towels by Deputy Guzman, and then "became upset and responded angrily that I wasn't going inside until I got more towels to clean." Comaduran conceded that that he "may have used profanity." Comaduran described the ensuing struggle between himself and the deputies in which the deputies sprayed him with pepper spray, he attempted to close himself in his cell, and the deputies pinned him down and then forcibly led him away. Comaduran concluded, "Rather than responding to me like there was a legitimate problem, the Deputies behaved aggressively and abusively towards me. If I had ever been told that momentarily I had to enter, but that towels for cleaning would be provided shortly, this entire situation could have been avoided. Instead, I was treated as if I were merely a problem and needed to be forcibly made to obey immediately."
In the discovery motion, defense counsel argued that good cause existed for discovery of the deputies' personnel files because of an alleged discrepancy in Comaduran's version of what occurred and the deputies' version. Relying on the preliminary hearing transcript, defense counsel argued: "According to the deputies, Mr. Comaduran became confrontational for no reason and deliberately made things difficult for them, without any reason whatsoever. According to Mr. Comaduran, there was a sewer leak in his cell and he wanted to clean it up. The deputies denied him the opportunity to do so for no valid reason and then attacked him. . . . [¶] Since there is a significant difference in the versions of this event, good cause exists for disclosure of the requested information."
As the appellant, Comaduran has the burden to provide a record that is adequate for us to review the trial court's exercise of its discretion. " ' "For an appeal to engage the consideration of an appellate court, it must be brought up on a record which, in addition to being otherwise formally sufficient, shows the error calling for correction. Such error is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him." This basic rule is a corollary of the equally fundamental principle that all presumptions and intendments are in favor of the regularity of the action of the lower court in the absence of a record to the contrary.' " (People v. Green (1979) 95 Cal.App.3d 991, 1001.) Comaduran's discovery motion attempted to show good cause for the requested discovery by relying on the preliminary hearing testimony of Deputy Fukushima and Deputy Guzman, which it attempted to contrast with the version of events described in Comaduran's declaration. However, the preliminary hearing transcript regarding the jail incident is not a part of the appellate record. Accordingly, Comaduran's challenge to the trial court's exercise of its discretion fails because we lack the ability to review the factual basis for Comaduran's argument that good cause existed, i.e., that there was a material contrast between the events as testified to by deputies and as described by Comaduran in his declaration.
We note, however, that even without the ability to review the preliminary hearing transcript, it is clear that the trial court was well within its discretion to conclude that Comaduran failed to show good cause for the discovery of the deputies' personnel files. Neither in his declaration, nor in the motion itself, did Comaduran, as required, "propose a defense or defenses to the pending charges." (Warwick, supra, 35 Cal.4th at p. 1024.) In addition, because his defense was never clearly identified, Comaduran failed to "articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events." (Id. at p. 1021.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.