Opinion
A147909
01-31-2017
THE PEOPLE, Plaintiff and Respondent, v. LEVI CATTRELL HALL, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FCR317262)
This case comes before us for review under the procedures prescribed in People v. Wende (1979) 25 Cal.3d 436, 441-442 (Wende). Appellant Levi Cattrell Hall appeals from his conviction and sentence for evading a peace officer (Veh. Code, § 2800.2) after a no contest plea, solely "based on the sentence or other matters occurring after the plea that do not affect the validity of the plea." (See Cal. Rules of Court, rule 8.304(b)(4).) Finding no issues that merit briefing, we affirm.
I. BACKGROUND
According to a report by the California Highway Patrol (CHP), on July 20, 2014, CHP officers observed a motorcycle traveling in excess of 100 miles per hour. The CHP officers caught up with the motorcycle and activated their overhead lights in an attempt to conduct a traffic enforcement stop, but the motorcyclist failed to yield and a pursuit ensued, lasting more than 20 minutes and covering a distance of approximately 40 miles. Finally, the motorcyclist lost control of the vehicle and collided with a dirt hill. The driver, who was subsequently identified as Hall, was then arrested. At the time of his arrest, Hall told officers he failed to yield because he did not have a motorcycle license and did not want to receive a ticket and possibly have his bike towed.
On October 2, 2015, the Solano County District Attorney filed a complaint charging appellant with one felony count of evading an officer. (Veh. Code, § 2800.2, subd. (a).)
On December 2, 2015, appellant filed a Pitchess motion seeking discovery of personnel files of two CHP officers involved in the high speed chase. (Pitchess v. Superior Court (1974) 11 Cal.3d 531; Pen. Code, §§ 832.7, 838.8; Evid. Code, §§ 1043-1047.) Counsel sought the information to establish the "habit or custom" of the officers to "provide false information and/or testify falsely" and for potential impeachment of the officers if they were called as witnesses. The Attorney General filed an opposition to the Pitchess motion on behalf of the CHP. On December 29, 2015, the trial court granted the Pitchess motion (see People v. Hustead (1999) 74 Cal.App.4th 410, 415-418), but, after clearing the courtroom, putting the custodian of records under oath (People v. White (2011) 191 Cal.App.4th 1333, 1339-1340), and conducting an in camera hearing with the CHP's custodian of records (see People v. Mooc (2001) 26 Cal.4th 1216, 1227-1230 (Mooc)), announced in open court there were no discoverable documents to turn over to the defense.
On January 12, 2016, appellant entered a no contest plea to one misdemeanor count of evading an officer (Veh. Code, § 2800.2, subd. (a); see also Pen. Code, § 17, subd. (b)) with the understanding that he would receive a sentence no greater than one year in county jail. The parties stipulated to a factual basis for appellant's plea.
On February 23, 2016, the court suspended imposition of sentence and placed appellant on summary probation for two years, with 45 days in county jail. The trial court overruled defense counsel's objection to the imposition of a warrantless search and seizure condition of probation. The court also imposed a condition requiring appellant to complete 16 hours of anger management counseling (or equivalent therapy with a mental health provider). Lastly, the court imposed a $150 restitution fine, a $150 suspended probation revocation restitution fine, a $40 court security fee, and a $30 criminal conviction assessment.
Following appellant's timely notice of appeal, his attorney filed a brief asking us to review the entire record in accordance with the procedures set forth in Wende, supra, 25 Cal.3d 436. The declaration of appellate counsel attached to the Wende brief also sets forth that counsel informed appellant he had a right to file a supplemental brief on his own behalf within 30 days. No such brief was received by the court.
II. DISCUSSION
We have reviewed the entire record to determine whether there are any issues that would, if resolved favorably to appellant, result in reversal or modification of the judgment. We conclude there are none.
Appellant was represented by competent counsel throughout the proceedings. Prior to accepting appellant's no contest plea, the trial court confirmed that he knowingly waived his constitutional rights and understood the consequences of his plea. (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.)
We have reviewed the transcript of the proceeding relating to the documents produced by the CHP's custodian of records in response to the Pitchess motion. The record suggests the judge did not examine any records, but simply accepted the custodian's representations as to the contents of the officers' files. If any documents were reviewed, they were not identified on the record and have not been included in the record on appeal, nor have we been provided with a list of documents reviewed.
Cf. Mooc, supra, 26 Cal.4th at p. 1229 ("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.").
"The trial court should . . . 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." (Mooc, supra, 26 Cal.4th at p. 1229.)
Even if we were to find some fault in the procedures employed, however, no further briefing would be warranted. Because the Pitchess motion was a type of discovery motion seeking evidence for the purpose of opposing the prosecution's proof of guilt—and did not go to the legality of the proceedings—it is not reviewable on appeal following appellant's no contest plea. (Pen. Code, § 1237.5; see People v. Johnson (2009) 47 Cal.4th 668, 676-678 [general rule requiring certificate of probable cause and exceptions]; People v. Voit (2011) 200 Cal.App.4th 1353, 1364 ["[i]ssues concerning the defendant's guilt or innocence are not cognizable on appeal from a guilty plea" or a no contest plea]; People v. Hunter (2002) 100 Cal.App.4th 37, 42-43 [motion to discover confidential informant, because it "does not raise an issue going to the legality of the proceedings," is not appealable, even with a certificate, if no suppression motion filed]; cf. People v. Moore (2003) 105 Cal.App.4th 94, 97-101 [Murgia motion, seeking discovery of prison records in support of claim of discriminatory enforcement, was appealable after a guilty plea because discriminatory enforcement implicates constitutional principles that would require dismissal regardless of the defendant's guilt]). We therefore have no obligation to augment the record on appeal or to review the Pitchess documents ourselves as part of our Wende review. (Cf. Mooc, supra, 26 Cal.4th at pp. 1221, 1231 [appellate court should augment the record with the documents reviewed by the trial court when a Pitchess motion is reviewable on appeal].)
There is an exception if the Pitchess motion is "intertwined" with a suppression motion raised on appeal. (People v. Hobbs (1994) 7 Cal.4th 948, 955-957 [appeal of motion to disclose sealed search warrant affidavit cognizable because the motion was an "integral part of [defendant's] motions to quash and traverse the warrant"]; People v. Collins (2004) 115 Cal.App.4th 137, 150-151 ["intertwined" exception]; 1538.5, subd. (m).) No suppression motion was filed in this case.
Murgia v. Municipal Court (1975) 15 Cal.3d 286, 290-291.
The sentence imposed was consistent with the plea agreement and was within the statutory penalty range. (Veh. Code, § 2800.2, subd. (a).) The fines and fees were authorized by law. (Pen. Code, §§ 1202.4, subd. (b), 1202.44, 1465.8; Gov. Code, § 70373.)
The condition of probation subjecting appellant to warrantless search and seizure is a commonplace and valid condition of probation. (People v. Bravo (1987) 43 Cal.3d 600, 607-611.) "Probationers in California typically consent in advance to warrantless searches as a condition of probation, in exchange for the opportunity to avoid a prison sentence." (People v. Durant (2012) 205 Cal.App.4th 57, 64.)
The requirement of anger management counseling is consistent with People v. Lent (1975) 15 Cal.3d 481, 486. We have reviewed the probation report and satisfied ourselves that the probation condition addresses an individualized need of this offender related to past and potentially to future criminality.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Streeter, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Rivera, J.