Opinion
G060078
12-15-2021
THE PEOPLE, Plaintiff and Respondent, v. DUSTIN SCOTT FLAMING, Defendant and Appellant.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oeting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 19NF0683, Richard M. King, Judge. Affirmed.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oeting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MARKS, J. [*]
A jury convicted defendant Dustin Scott Flaming of one count of dissuading a witness by force (Pen. Code, § 136.1, subd. (c)(1); count 1) and one count of false imprisonment by menace or violence (§§ 236, 237, subd. (a); count 2). The court found true allegations that defendant had suffered two prison priors. (§ 667.5, subd. (b).)
All further statutory references are to the Penal Code.
The court sentenced defendant to four years in state prison as follows: (1) the middle term of three years on count 1; (2) the middle term of two years on count 2, which was stayed pursuant to section 654; and (3) one year for one of the prior prison terms. The court struck the other prior prison term enhancement.
In a prior appeal, defendant claimed the court committed instructional error. (People v. Flaming (Sept. 21, 2020, G058151) [nonpub. opn.] (Flaming I).) He also sought independent review of the court's Pitchess ruling with respect to one officer's records and further argued the court erred by denying his Pitchess motion without conducting an in camera review with respect to another officer. (Ibid.) Finally, he contended his two prior prison term enhancements (§ 667, subd. (b)) should have been stricken. (Ibid.)
(Pitchess v. Superior Court (1974) 11 Cal.3d 531.)
We conditionally reversed the judgment and remanded to the court with directions to hold a new Pitchess hearing of one officer's records and to modify the judgment by striking defendant's two prior prison term enhancements. In all other respects, we affirmed the judgment. (Flaming I, supra, G058151.)
On remand, the court conducted a second in camera Pitchess hearing, determined there were no discoverable documents, and reinstated a modified judgment striking defendant's two prior prison term enhancements. Defendant again appeals and seeks review of the court's second Pitchess ruling. We have done so and find no abuse of discretion. The judgment accordingly is affirmed.
The facts are taken from our unpublished opinion in defendant's prior appeal. (Flaming I, supra, G058151.)
"In March 2019, defendant's mother, Coriene, lived with her two daughters and one of her sons. Defendant did not live with his mother.
"On March 9, 2019, Officer Joshua Contreras was dispatched to Coriene's residence around noon. He spoke with defendant on the telephone. Defendant sounded inebriated. Later in the day, defendant sent two text messages to Coriene. One message said, "If I see you or him again, I will deal with you both." Defendant was referring to Coriene and defendant's brother. The other message said defendant would kill his brother.
"After receiving the text messages, Coriene called the police, and Contreras was dispatched again to her house around 3:00 p.m. When Contreras arrived, he spoke with Coriene, and she showed him the text messages. According to Contreras, Coriene appeared to be "very nervous" and she said the text messages had scared her. At trial, Coriene testified she had called the police because she was worried about defendant's "stability," but she denied saying she was scared.
"About three or four hours after defendant sent the text messages, he entered Coriene's house through the back, sliding door. Coriene sent a text message to another daughter who lived elsewhere. She told her daughter defendant was in her house, and she asked her daughter to call the police. At trial, Coriene testified she wanted her daughter to call the police because she was worried a stranger was in the house and was worried about defendant's stability. She testified she did not call the police herself because she did not want her children in the house to "hear anything like this."
"For the third time that day, Contreras arrived at the house around 6:00 p.m., this time with other officers. Contreras and two other officers, Maccubbin and King, knocked on the door, announced they were police officers, and asked for the door to be opened. They did not receive a response at first. Contreras eventually heard Coriene say, 'Everything is okay.' She repeated this statement and further said, 'You can go.' He believed her voice sounded 'shaky and distressed.' He also saw Coriene through a window and testified she appeared to be 'stiff,' 'extremely agitated,' and in tears. Coriene again stated, 'Everything is okay. You can go now.'
"Contreras then heard a male voice say, 'Come back with a warrant.' After Coriene repeated the same statement, Maccubbin asked if she was being told what to say. She nodded her head up and down. When asked if she was being held against her will or if defendant was preventing her from opening the door, she again nodded her head up and down and whispered, 'Yes.' She then shut the window blinds. At trial, Coriene testified she did not open the door because defendant had a duffel bag in his hand and was about to leave. She also denied being held against her will or that she felt threatened by defendant.
"After the window blinds were closed, Maccubbin kicked at the door several times, and the officers made several commands for someone to open the door. Defendant eventually opened the door and was arrested. Contreras took a statement from Coriene. She said she was scared because of the text messages defendant had sent earlier in the day. She also said defendant was not allowed to be at her house and that he had told her not to open the door for the police because someone would get hurt. She further said she was afraid defendant would hurt her. According to Contreras, Coriene appeared to be scared and was crying.
"At trial, Coriene's daughter, who had called the police at Coriene's request, testified that she went to the house when the police were interviewing Coriene. She testified Coriene told the officers that defendant did not threaten her, prevent her from opening the door, or scare her." (Flaming I, supra, G058151.)
DISCUSSION
Before trial, defendant moved to discover the personnel records of Officers Contreras and Maccubbin. (Flaming I, supra, G058151.) The police department had no objection to allowing the inspection of Contreras's records, but objected to the inspection of Maccubbin's records. (Ibid.) The court found good cause to review Contreras's files (People v. Samuels (2005) 36 Cal.4th 96, 109) and conducted an in camera review (Evid. Code, § 1045, subd. (b)), but found no discoverable items (see People v. Mooc (2001) 26 Cal.4th 1216, 1226-1232). (Flaming I, supra, G058151.) The court denied defendant's motion to discover Maccubbin's personnel records without conducting an in camera review. (Ibid.)
In Flaming I, we found the court acted within its discretion by denying defendant's motion without conducting an in camera review of Maccubbin's records. (Flaming I, supra, G058151.) But we remanded to the court with directions to hold a new Pitchess hearing regarding Contreras's records because the court had not questioned the custodian of records about what records were present in his personnel file or what records had been reviewed to reach the conclusion that no documents were responsive. (Ibid.) On remand, the court conducted a second in camera Pitchess hearing and determined there were no discoverable documents.
The People do not object to our independent review of the confidential proceedings in this second appeal. (People v. Mooc, supra, 26 Cal.4th at p. 1229.) We have reviewed the sealed transcript of the in camera hearing. The court placed the custodian of records for the Placentia Police Department under oath in the presence of the police department's counsel. The custodian provided the records falling within the parameters of the request. The court examined the documents with the custodian on the record and identified the documents it reviewed. The court found no discoverable documents. We agree with the court. The court accordingly did not abuse its discretion by ruling there were no discoverable items in Contreras's personnel file. (Becerrada v. Superior Court (2005) 131 Cal.App.4th 409, 413.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.
[*]Judge of the Orange Super. Ct., assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.