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People v. Heredia

California Court of Appeals, Fourth District, Third Division
Apr 28, 2009
G039554, G040787 (Cal. Ct. App. Apr. 28, 2009)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 06CF1717, Gary S. Paer, Judge. Reversed and remanded with directions. Original proceedings; petition for writ of habeas corpus after judgment of the Superior Court of Orange County. Petition granted.

Sachi Wilson, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne McGinnis and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

FYBEL, J.

INTRODUCTION

Defendant Ignacio Ramon Heredia appeals from the judgment of his conviction for felony aggravated assault on a peace officer, misdemeanor assault on a peace officer, and misdemeanor domestic battery with corporal injury. On appeal, defendant challenges the trial court’s admission of evidence of prior domestic violence under Evidence Code section 1109 and the court’s denial of defendant’s motion to suppress evidence. (All further statutory references are to the Evidence Code unless otherwise specified.) While the appeal was pending, defendant filed a petition for a writ of habeas corpus, claiming ineffective assistance of counsel based on counsel’s failure to file a motion seeking the discovery of certain police officers’ personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

We hold as follows:

1. Section 1109, which allows the admission of evidence of certain prior instances of domestic violence, is constitutional. The trial court here, however, erred by admitting evidence of prior conduct that did not constitute domestic violence as defined in section 1109, subdivision (d). Because it is reasonably probable the jury would have reached a different verdict had this evidence been excluded, we reverse defendant’s conviction for misdemeanor domestic battery with corporal injury.

2. We grant defendant’s petition for a writ of habeas corpus on the ground the record shows defendant’s trial counsel failed to act as a reasonably competent attorney because he did not file a Pitchess motion. Because we are unable to conclude whether there is a reasonable probability the discovery defendant’s trial counsel should have sought would have led to admissible evidence helpful to the defense, we reverse the judgment and remand the matter to the trial court with directions to allow defendant the opportunity to file a Pitchess motion. Upon the filing of such a motion, and the trial court’s determination defendant satisfied the statutory prerequisites of a Pitchess motion and made a showing of good cause for the requested discovery, the trial court must conduct an in camera inspection of the requested personnel records for relevance. If, on remand, the trial court’s inspection of those records reveals no new and relevant information, the trial court must reinstate the judgment of conviction, as modified by this opinion. If the inspection reveals new and relevant information, the trial court must order disclosure as permitted by law, allow defendant an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed.

3. The trial court did not err by denying defendant’s motion to suppress evidence because the appellate record shows the police officer, who entered defendant’s residence, did so under exigent circumstances pursuant to Brigham City v. Stuart (2006) 547 U.S. 398. Our holding on this point is made without prejudice to defendant’s right to file a new motion to suppress evidence in the event the trial court orders a new trial following the Pitchess procedures, described ante.

FACTS

On June 1, 2006 at 6:50 p.m., Officer Stephen Hahm of the Santa Ana Police Department was dispatched to a residence in Santa Ana after a 911 operator received a call from that residence. The operator heard a woman’s voice say, in Spanish, “I told you so” and then the call ended. The operator attempted to call back the residence, but there was no answer. Hahm testified that “911 hang up calls” often occur in the context of domestic violence incidents.

Hahm approached the open garage door of the residence and saw a minivan inside. He heard shuffling noises coming from an upstairs window of the residence. Carrying several items, defendant walked into the garage through a door connecting the garage and the house, and began loading the minivan with the items. Hahm asked defendant if anything was going on because a 911 call had been received. Defendant did not acknowledge Hahm. Hahm observed that defendant was “sweating profusely.” Hahm told defendant he needed to talk to him because someone had called 911 from the house. Defendant stated his children might have been playing with the phone. Hahm asked if anyone else was in the house or whether anything had happened between defendant and his wife; defendant told Hahm he “had a fight with his wife.”

Hahm stated he needed to talk to defendant’s wife and children to make sure everybody was okay. Defendant told Hahm to leave and that he needed a search warrant. Defendant was agitated and used profanity. Hahm told defendant he was not in trouble, but that Hahm would not leave until he confirmed defendant’s wife and children were safe. Defendant tried to slam shut the door leading from the garage to the house, but Hahm prevented the door from closing.

Defendant yelled at Hahm and clenched his fists. Concerned for his safety, Hahm directed defendant to turn around, place his hands behind his head, and get down on his knees. Defendant did not comply with Hahm’s directives and Hahm deployed pepper spray. Defendant ran through the living room of the house and into the kitchen, and began washing his face at the kitchen sink; Hahm followed.

Hahm directed defendant to get on the ground. Defendant picked up two knives from the dish rack next to the sink, turned around and flung them at Hahm. One of the knives hit Hahm in the hand, causing a small cut. Hahm pulled out his gun and ordered defendant to the ground. Defendant raised a ceramic soup bowl over his head and walked toward Hahm, while yelling and threatening him. M.A., defendant’s live in girlfriend and the mother of his two children (whom defendant referred to as his wife), ran down a stairway, and yelled, “no, no, no.” Defendant returned to the kitchen sink and began washing his face again.

Officer John Holcomb of the Santa Ana Police Department arrived at the residence. Hahm ordered defendant to the ground. Defendant refused to comply with the directive. Hahm again deployed pepper spray. After defendant clenched his fists, Hahm struck defendant on the arm with his baton. Hahm struck him a second time after defendant continued to refuse to comply. Holcomb grabbed defendant in an effort to restrain him, but defendant was able to place one of his arms around Holcomb’s neck. Hahm struck defendant’s leg with the baton. Defendant and Holcomb stumbled into the dining area, fell to the ground, and began “wrestling around.” Eventually, Hahm was able to arrest defendant.

Officer Francisco Gomez of the Santa Ana Police Department interviewed M.A. Gomez testified M.A. told him defendant had been upset that day because people at his workplace were racist and he did not want to talk to her about it. M.A. told Gomez she went upstairs. After one of the children began crying, defendant came upstairs and angrily told M.A. she needed to keep the children quiet. M.A. told defendant to go downstairs and leave her alone; defendant became angrier. Gomez testified M.A. stated defendant slapped her, causing a scratch. M.A. dialed 911, but defendant grabbed the telephone from her and disabled it by removing the batteries. Defendant grabbed his belongings and went downstairs to the minivan. Gomez testified M.A. told him defendant became easily upset and agitated, and he had shoved her several times in the past.

M.A. testified that, prior to June 1, 2006, she and defendant had not had problems in their relationship and they argued “just like every couple argues.” She stated that, after she and defendant began arguing that night, she told him to close the door, leave her and the children alone, and go back downstairs. As she was exiting from the room, he tried to hold her back. M.A. denied telling Gomez that defendant had slapped her, had caused the scratch on her forehead, had shoved her numerous times in the past, and loses his temper easily. M.A. testified she did not know how she was scratched and did not know she had been scratched at the time she spoke with the police officers. M.A. testified defendant had never before touched her in anger.

PROCEDURAL BACKGROUND

Defendant was charged in an information with two felony counts of aggravated assault on a firefighter or peace officer in violation of Penal Code section 245, subdivision (c) (counts 1 and 2), and one count of misdemeanor domestic battery with corporal injury in violation of Penal Code section 273.5, subdivision (a) (count 3).

The trial court denied defendant’s motion to suppress evidence under Penal Code section 1538.5, in which defendant sought to suppress evidence obtained as a result of the officers’ warrantless entry into defendant’s residence, search of that residence and seizure of defendant. The court granted the prosecution’s motion under section 402, seeking to admit evidence of defendant’s prior instances of domestic violence pursuant to section 1109.

The jury found defendant guilty of felony assault on a peace officer with a deadly weapon, as charged in count 1; misdemeanor assault on a peace officer (the lesser included offense of felony assault on a peace officer, as charged in count 2); and misdemeanor domestic battery with corporal injury, as charged in count 3. The court placed defendant on three years’ formal probation with the condition, inter alia, he serve 365 days in Orange County jail for count 1, 330 days for count 2 (to run concurrently with the jail time imposed on count 1), and 330 days for count 3 (also to run concurrently with the jail time imposed on count 1). Defendant appealed.

On April 9, 2008, defendant’s appellate counsel filed a request for an order directing defendant’s trial counsel to provide her with defendant’s “papers and property, as contained within trial counsel’s file” because trial counsel had failed to respond to her requests for the file and inquiries regarding defendant’s case. On April 15, 2008, this court issued an order directing defendant’s appellate counsel to (1) contact trial counsel concerning appellate counsel’s request and report back to this court by May 1, 2008 regarding the status of appellant’s counsel’s request; and (2) submit a letter brief addressing whether this court has any legal or ethical duty under canon 3D of the California Code of Judicial Ethics to report trial counsel to the California State Bar Office of Chief Trial Counsel/Intake.

On May 5, 2008, defendant’s appellate counsel filed a letter brief on the issue whether this court has any legal or ethical duty under canon 3D of the California Code of Judicial Ethics to report trial counsel to the California State Bar. Appellate counsel concluded, “Canon 3D does not require the Court to report [trial counsel] to the Bar Association. Yet, it must still take ‘appropriate corrective action’ because of [trial counsel]’s continued failure to supply his trial file to appellate counsel. Under the circumstances of this case, [defendant] respectfully requests that appropriate action would be a direct order to trial counsel to turn over the file by a certain day, violation of which would be punishable by contempt.”

In May 2008, defendant’s appellate counsel advised this court that she had received the requested documents. This court therefore denied defendant’s appellate counsel’s request for an order directing trial counsel to provide such documents, as moot.

In August 2008, defendant filed a petition for a writ of habeas corpus. This court issued an order to show cause why a writ of habeas corpus should not issue, set a briefing schedule, and ordered the petition for a writ of habeas corpus in case No. G040787 consolidated with defendant’s direct appeal in case No. G039554, for all purposes.

DISCUSSION

I.

We Reverse Defendant’s Conviction for Misdemeanor Domestic Battery with Corporal Injury.

Defendant challenges the trial court’s admission of evidence of defendant’s prior domestic violence under section 1109 on two grounds: (1) section 1109 violates the right to due process, and (2) the prior conduct admitted under section 1109 did not constitute domestic violence as defined in section 1109, subdivision (d). We address each of defendant’s arguments, in turn.

A.

Section 1109 Does Not Violate Due Process.

Defendant contends the admission of his prior domestic violence evidence under section 1109 facially violates the right to due process. Section 1109, subdivision (a)(1) provides: “Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”

Section 1109, subdivision (e) states: “Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.” Section 1109, subdivision (f) states: “Evidence of the findings and determinations of administrative agencies regulating the conduct of health facilities licensed under Section 1250 of the Health and Safety Code is inadmissible under this section.”

Defendant’s argument that evidence admitted under section 1109 violates due process was rejected in People v. Jennings (2000) 81 Cal.App.4th 1301. In People v. Jennings, the court stated, “[w]ith regard to appellant’s argument that section 1109 runs afoul of the due process provisions of the federal and state constitutions, this contention has already been rejected by the courts. In People v. Falsetta (1999) 21 Cal.4th 903... (Falsetta), our Supreme Court addressed the constitutionality of section 1108, a parallel statute which addresses prior ‘sexual offenses’ rather than prior ‘domestic violence,’ and upheld that provision against due process challenge. [Citation.] Although the Supreme Court has not addressed the constitutionality of section 1109, at least three recent post Falsetta cases from the Courts of Appeal have subsequently upheld the constitutionality of section 1109 against similar due process challenges.” (Id. at p. 1310; see People v. Escobar (2000) 82 Cal.App.4th 1085.)

Section 1108, the statute parallel to section 1109, permits evidence of prior sexual offenses to be admitted in a criminal action in which the defendant is accused of a sex offense. In People v. Falsetta (1999) 21 Cal.4th 903, the defendant argued section 1108 violated his constitutional right to due process. Our Supreme Court disagreed, concluding that “‘[s]ection 1108 has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial. Such evidence is still subject to exclusion under... section 352. [Citation.]... This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that... section 1108 does not violate the due process clause.’ [Citation.]” (People v. Falsetta, supra, 21 Cal.4th at pp. 917 918, italics omitted.) Section 1109 contains the same section 352 safeguard against the use of evidence of prior acts of domestic violence in cases where the admission of such evidence could result in a fundamentally unfair trial. Therefore, we conclude section 1109 does not violate due process.

B.

The Trial Court Erred by Admitting Evidence of Prior Conduct That Did Not Meet the Definition of Domestic Violence Contained in Section 1109, Subdivision (d).

Section 1109, subdivision (d)(3) defines the term “domestic violence” as having “the meaning set forth in Section 13700 of the Penal Code.Penal Code section 13700, subdivision (b), states, in relevant part: “‘Domestic violence’ means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.” Penal Code section 13700, subdivision (a) states: “‘Abuse’ means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.”

Section 1109, subdivision (d) further defines domestic violence as follows: “Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, ‘domestic violence’ has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.” Family Code section 6211 reiterates Penal Code section 13700, subdivision (b) that domestic violence is abuse committed against a spouse, former spouse, cohabitant, former cohabitant, a person with whom the defendant has had a child, or is having or has had a dating or engagement relationship. Family Code section 6211 does not define the term “abuse.”

Before trial, the prosecution filed a motion seeking an order under section 402 that would admit evidence of defendant’s “prior acts of domestic violence” under section 1109. In the motion, the prosecution described its proffered evidence of prior acts of domestic evidence, as follows: “Victim [M.A.] told officer Gomez that defendant has shoved her numerous times in the past and he loses his temper easily.”

At the hearing on the motion, the prosecutor stated that M.A. had told Gomez that she and defendant “had been living together as boyfriend and girlfriend for about five years and had two children in common.” The prosecutor further stated, “I realize that the shoving isn’t d[e]scriptive as to specific dates or times; however, it is well within the 10 years that’s proscribed.” Defendant’s counsel opposed the motion, arguing that the proposed evidence of prior conduct did not qualify as domestic violence under section 1109.

The trial court granted the motion and ruled Gomez’s testimony admissible as evidence of prior domestic violence under section 1109. The court stated: “It’s the court’s position that that would qualify. That would qualify. That would be enough. [¶] There’s no specific requirement that all the details be provided, but when someone tells a law officer who is inquiring about past violence that the defendant has shoved her numerous times and he loses his temper easily, it’s the court’s position that that would fall within the definition of [Penal Code] 13700[, subdivisions ](a) and (b).” At trial, Gomez testified that M.A told him defendant “had physically shoved her several times in the past” and “gets agitated easily and upset.”

Defendant argues the trial court erred by admitting Gomez’s testimony because it did not describe domestic violence as defined in section 1109, subdivision (d) and because the prejudicial effect of this evidence substantially outweighed its probative value under section 352.

We conclude the trial court erred by admitting Gomez’s testimony regarding defendant’s prior acts of shoving M.A. The record does not show when the prior instances of shoving occurred or whether defendant and M.A. had a type of relationship described in Penal Code section 13700, subdivision (b) or Family Code section 6211 at the time of those incidents. Furthermore, although a shove could constitute an attempt to cause bodily injury, not every shove necessarily rises to that level. The prosecution did not make an offer of proof as to the degree of force of any shoving incident, the consequences of any such incident, or any other fact about the circumstances surrounding such shoving incidents, which would permit a reasonable finder of fact to determine that defendant had attempted to injure M.A.

The Attorney General argues that M.A. “told police [defendant] gets agitated and upset easily and had physically shoved her several times in the past.... It was certainly reasonable for the court to infer [defendant] attempted to cause bodily injury when he shoved M[.]A., after becoming agitated and angry.” The record does not contain evidence which supports such an inference.

At trial, M.A. testified that, before June 1, 2006, she and defendant had not had any problems with their relationship other than arguing “just like every couple argues.” She testified that, during the evening of June 1, she and defendant argued, she tried to leave, and he held her back. M.A. testified she did not know how she ended up with a scratch on her forehead and did not even know she had a scratch on her face at the time she spoke with the police officers that night.

M.A. further testified that defendant had never shoved her or touched her when he was angry with her during their relationship. She denied telling a police officer that defendant had shoved her numerous times and loses his temper easily when asked if he had struck her in the past. She also denied telling a police officer that defendant had slapped her and caused the scratch on her forehead.

On this record, absent the evidence that defendant had shoved M.A. several times in the past and became angry easily, it is “reasonably probable” that the jury would have acquitted defendant of misdemeanor domestic battery with corporal injury. (People v. Watson (1956) 46 Cal.2d 818, 836.) We therefore reverse his conviction on count 3.

II.

Defendant Has Established His Trial Counsel Failed to Act as Reasonably Competent Counsel Because He Did Not File a Pitchess Motion in This Case.

Defendant contends he was denied his constitutional right to effective assistance of counsel because his trial counsel, David Scharf, failed to file a Pitchess motion under sections 1043 through 1047, seeking the discovery of information relating to each of the responding police officers’ reputations for “untruthfulness, racial bias, and fabrication of complaints.” For the reasons discussed post, we conclude trial counsel’s performance in failing to file a Pitchess motion under the circumstances shown by the record fell below an objective standard of reasonableness, and we remand the matter to the trial court to provide defendant the opportunity to file such a motion.

Pitchess motions are named after the California Supreme Court’s decision in Pitchess, supra, 11 Cal.3d 531.

“‘“In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶]... under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.]”’” (People v. Salcido (2008) 44 Cal.4th 93, 170.)

We therefore first consider whether trial counsel’s failure to file a Pitchess motion in this case fell below an objective standard of reasonableness. The record shows the police officers’ credibility was central to the prosecution’s case against defendant. Defendant was convicted for domestic battery with corporal injury based on Gomez’s testimony about what M.A. had told him. Hahm and Holcomb were the only witnesses to defendant’s commission of the felony aggravated assault on a peace officer and misdemeanor assault on a peace officer offenses. In addition, the trial court’s denial of defendant’s motion to suppress evidence was primarily, if not entirely, based on Hahm’s testimony regarding his observations before and after he entered the garage. Furthermore, the record also contains evidence Hahm admitted he had recently been untruthful in his reporting of circumstances that had occurred in an unrelated criminal case. Also, Holcomb had made a typographical error in the probable cause declaration in this case by erroneously stating defendant had thrown knives at the officers instead of referring to only one officer, Hahm.

The record also shows that defendant’s trial counsel believed discovery into some or all of the involved officers’ records pertaining to misconduct would be important in this case. In July 2006, trial counsel filed an informal discovery request pursuant to Penal Code section 1054 et seq., in which he sought, inter alia, discovery of the following: (1) “A copy of any and all police reports, including, but not limited to handwritten notes and[/]or memos, not already provided. This request includes any and all reports[,] notes, memos, records or recordings prepared pursuant to any administrative review of the use of force by police officers”; (2) “A certified copy of any and all video or audiotapes involved in this case, including, but not limited to any and all conversations with the defendant, witnesses, or any other persons connected with this case”; (3) “Any exculpatory evidence of which the prosecution is aware or reasonably should be aware, including information relating to any involved police officer’s misconduct, instances of false hood, use of excessive force, or any information pertaining to the present or past credibility/character of any witness for truthfulness, excessive force or exceeding the bounds of police duty/policy. This includes any reports/documents or records pertaining to potential discipline, citizen complaints and/or the filing of criminal charges for such conduct whether past or present”; and (4) “A copy of any and all oral or written statements, reports, police reports, memorandums, admissions and/or confessions relating to any and all evidence the People intend to introduce as evidence at trial pursuant to California Evidence Code [section] 1101[, subdivision ](b).”

Defendant’s trial counsel filed a motion to compel this discovery in September 2006. At the first hearing on that motion, the prosecutor argued that the above requested items sought “documentation of an internal affairs investigation[, n]ot a criminal investigation,” and thus were not in the prosecution’s control. The prosecutor added: “A mechanism has been put in place in criminal procedure[s] for such things. It’s called Pitchess.” (Italics added.) Trial counsel argued that the discovery he sought was not “Pitchess material” (italics added).

At a separate hearing in October 2006, the prosecutor explained that whenever force is used by Santa Ana police officers, they complete reports for administrative review, which become part of the officers’ personnel files. Such information is discoverable through Pitchess proceedings. The trial court stated to defendant’s trial counsel: “And you are familiar with Pitchess, and if you wanted to bring a Pitchess motion, you would do so.” (Italics added.)

After defendant’s trial counsel argued as to why he thought the sought after material was “not Pitchess material,” the trial court stated, “based on [the prosecutor]’s comments that it appears as though any use of force, being a gun, taser, baton, whatever,... obviously [undergoes] some sort of internal review. And he’s been told that that goes into the personnel file of the officer that allegedly used the force, even though it wasn’t done at the request of a complainant or someone who was basically accusing of suing the police department. [¶] If you want to get this information, and if you believe it exists, then file a Pitchess motion. And then we will have the custodian come over with the city attorney, then I get to—they bring in the officer’s file.” (Italics added.)

After defendant’s trial counsel continued to argue he did not need to file a Pitchess motion to get the sought after discovery, the trial court reiterated, “the only way for you to get to it is to do a Pitchess. It doesn’t have to be the new case law on Pitchess. It’s very easy to get an in camera review based on good faith belief. The standard has been whittled down. I am confident you could draft a one-page declaration and get me into chambers on this with the custodian. It wouldn’t be that difficult.” (Italics added.) Trial counsel responded, “I agree.”

The trial court further stated: “I’m giving you a chance to if you really want this material, you believe it exists, you can file a Pitchess motion. I have sort of given you an indicat[ion] that I certainly would give you an in-camera review and have the officer hand carry the file over, and I will take a look at it.” (Italics added.) After asking the court whether it would grant an order shortening time on a Pitchess motion, the court responded, “I will give you time to file your Pitchess, come back, and we could do the Pitchess, then have that done, then pick a trial date.” (Italics added.)

Defendant’s trial counsel did not file a Pitchess motion. Instead, he pursued his motion to compel his discovery requests. At the hearing in February 2007, defendant’s trial counsel reiterated his arguments that he did not think he needed to file a Pitchess motion to obtain the sought after discovery. After a hearing, the trial court stated, “I’m kind of surprised back in October of ’06, when [the prosecutor] came back with that information, I said, look. File a Pitchess and we can get to where you want to go. The Pitchess wasn’t filed and here we are today.... [¶]... [¶]... [W]e’re talking about the same motion to compel against the wrong party.” (Italics added.) The trial court again said, “your declaration would have to say in a Pitchess in good faith—a good faith belief, it’s our position that the officer used unlawful force; therefore, I want the records. And therefore, that would trigger an in-camera hearing. [¶] The standard for Pitchess has been relaxed a lot due to recent case law.” (Italics added.)

Defendant’s trial counsel did not file a Pitchess motion and trial began in September 2007. During trial, defendant’s counsel complained that he understood M.A. might have made a tape recorded statement to the police, of which he was unaware. The following discussion occurred between the trial court, defendant’s trial counsel, and the prosecutor, outside the presence of the jury:

“[Defendant’s trial counsel]: An interview of the alleged victim in the case regarding the incident and what transpired that is tape recorded that is withheld by the prosecution as being part of a personnel file, it’s by the same agency that’s doing the primary investigation, I think is relevant. [¶] As far as whether they give it to us or not, I don’t see how that could possibly be part of a personnel file when the interview is conducted to determine what happened there during that incident. [¶] The fact that they won’t turn it over, it’s preposterous. That’s all. It’s evidence in the case.

“[The prosecutor]: The court litigated this issue. The court made findings on this issue.

“The Court: Was there a Pitchess motion made?

“[Defendant’s trial counsel]: No, because this is not Pitchess material. I can cite the case law on that.

“[The prosecutor]: We have already done this, Your Honor. We had an entire hearing that took up most of a morning that I have the transcripts of sitting before me, and the court made its findings.

“The Court: Is it—are we at a point now where there is a possible tape out there that just no one bothered to get?

“[The prosecutor]: No, we are in the same position we were in before where the People have no knowledge of a tape, [defendant’s trial counsel] believes there’s a tape, he tried to get that tape he believes exists from us without going through Pitchess. [¶] The court heard extensive arguments and briefs and made a finding that Pitchess was the appropriate avenue. And the cases he cited that supported the position that the prosecution had to get this personnel file information—if it exists—and turn it over was unfounded. And the court made its findings if you want it and it exists or you want to see if it exists, file your Pitchess motion.” (Italics added.)

After further argument, the trial court understandably stated: “I’m quite puzzled. This case has been around for 1.2 years, and we are in the middle of trial. I asked both of you numerous times ‘are you still ready? Are you ready?’ Both sides announced ready. We picked a jury, we are in the middle of trial, and now are you suggesting that you are not ready, because you think there’s a tape out there that either falls within [Penal Code section] 1054 or falls within Pitchess?” (Italics added.) After the prosecutor informed the court that Gomez had stated he had not taped his interview with M.A., defendant’s trial counsel insisted another police officer had been the one who recorded the statement. Frustrated, the trial court stated: “I can’t make rulings on discovery if I don’t really know what the facts are, and right now, it appears as though everyone is in the dark. [¶] But I also do know that we are in the middle of trial. I mean, if you were so concerned about tape recordings and who taped what, you should have filed a formal discovery motion. You should have filed a Pitchess motion.” (Italics added.)

The record shows, in great detail, defendant’s trial counsel’s efforts to informally obtain discovery information he thought important to the defense, which required a Pitchess motion. (See Alford v. Superior Court (2003) 29 Cal.4th 1033, 1037, fn. 3 [“a criminal defendant has a limited right to discovery of peace officer personnel records in order to ensure ‘a fair trial and an intelligent defense in light of all relevant and reasonably accessible information’”].) Inexplicably, defendant’s trial counsel took the position he was entitled to that discovery without having to file a Pitchess motion, and ultimately never filed such a motion. This is not a case where trial counsel’s decision not to file a Pitchess motion was based on some defense strategy or tactics. To the contrary, there is no satisfactory explanation for defendant’s trial counsel’s abject failure to file a Pitchess motion, especially considering the trial court’s multiple offers to entertain such a motion.

We therefore turn to the question whether defendant was prejudiced by trial counsel’s deficient performance. Defendant does not know what evidence, if any, might have been discovered had a Pitchess motion been filed; nor do we. In this circumstance, we are unable to conclude whether there is a reasonable probability the discovery defendant’s trial counsel should have sought would have led to admissible evidence helpful to defendant’s defense: “There may not have been any complaints against [the officers involved in the incident] for the type of conduct [defendant] sought. In that case, [defendant] would not have been prejudiced because access to the officer[s’] file[s] would not have led to any admissible evidence at trial. However, we must consider the possibility that such evidence may exist.” (People v. Hustead (1999) 74 Cal.App.4th 410, 418.)

We therefore remand the matter to the trial court with directions to permit defendant the opportunity to file a Pitchess motion. Upon a determination defendant satisfied the statutory prerequisites of a Pitchess motion and made a showing of good cause for the requested discovery, the trial court must conduct an in camera inspection of the requested personnel records for relevance. If the trial court’s inspection on remand reveals no new and relevant information, the trial court must reinstate the judgment of conviction as modified by this opinion. If the inspection reveals new and relevant information, the trial court must order disclosure as permitted by law, allow defendant an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed.

III.

The Trial Court Did Not Err by Denying Defendant’s Motion to Suppress Evidence.

Defendant argues the trial court erred by concluding Hahm entered his residence under exigent circumstances and by denying his motion to suppress evidence. For the reasons discussed post, we disagree.

On a motion to suppress evidence, the moving party bears the initial burden of proving the search was undertaken without a warrant. (People v. Williams (1999) 20 Cal.4th 119, 127 128, 136.) Here, the parties stipulated the search was warrantless and defendant had standing to bring the motion.

The prosecution had to prove by a preponderance of the evidence that a warrantless search or seizure was justified. (People v. Williams, supra, 20 Cal.4th at pp. 130, 136 137; People v. James (1977) 19 Cal.3d 99, 106, fn. 4; People v. Rios (1976) 16 Cal.3d 351, 355 356.)

“As the finder of fact in a proceeding to suppress evidence (Pen. Code, § 1538.5), the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable.” (People v. Woods (1999) 21 Cal.4th 668, 673.) Thus, we view the record in the light most favorable to the trial court’s ruling, resolve all conflicts in its favor, and defer to those express or implied findings supported by substantial evidence. (People v. Jenkins (2000) 22 Cal.4th 900, 969; People v. Woods, supra, 21 Cal.4th at p. 673.) We independently review the trial court’s application of the law to the facts. (People v. Jenkins, supra, 22 Cal.4th at p. 969.)

Citing, inter alia, Brigham City v. Stuart, supra, 547 U.S. 398, the trial court concluded Hahm’s warrantless entry into defendant’s residence did not violate the Fourth Amendment to the United States Constitution because Hahm had a reasonable belief, based on the evidence presented at the hearing, that M.A. was either injured or in imminent danger of injury.

In Brigham City v. Stuart, supra, 547 U.S. 398, 403 404, the United States Supreme Court stated: “It is a ‘“basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.”’ [Citation.] Nevertheless, because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to certain exceptions. [Citations.] We have held, for example, that law enforcement officers may make a warrantless entry onto private property to fight a fire and investigate its cause, [citation], to prevent the imminent destruction of evidence, [citation], or to engage in ‘“hot pursuit”’ of a fleeing suspect, [citation]. ‘[W]arrants are generally required to search a person’s home or his person unless “the exigencies of the situation” make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.’ [Citation.] [¶] One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. ‘“The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.”’ [Citations.] Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. [Citations.]” The Supreme Court held, “police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.” (Id. at p. 400.)

Here, Hahm’s testimony at the hearing on defendant’s motion to suppress evidence supported the trial court’s conclusion Hahm had an objectively reasonable belief, before entering the garage, that an occupant of the residence was seriously injured or imminently threatened with such injury. Hahm testified he was dispatched to defendant’s residence after a “911 hang up call” had originated from the residence. A female voice said, in Spanish, “I told you so” before the 911 call was terminated. A return call was made to the residence in an effort to determine whether 911 had been dialed accidently, but it was not answered. In Hahm’s experience, 911 hang up calls occur when children play with the phone, someone misdials while trying to call an international area code similar to 911, or there is a domestic violence situation. In the context of a domestic violence situation, a 911 hang up call happens when the party being assaulted or abused calls 911 and the abuser takes the phone away or pulls the phone jack out of the wall. Hahm testified that 50 percent of the time such a call is interrupted by an abuser.

Hahm testified that, after he arrived at the residence, he walked up to the open garage door and saw inside the garage a minivan with its side sliding door and rear hatch door open. Hahm heard a lot of shuffling noises coming from the upstairs bedroom window, which he thought sounded like objects being moved or someone getting pushed around. He intended to wait for backup but saw defendant, who was sweating profusely, enter the garage through a door connected to the house. Hahm told defendant about the 911 call and asked if anything was going on in the house; defendant ignored him and loaded items into the minivan. Hahm asked defendant if anyone else was inside the residence. Defendant ignored him and continued to load the items into the minivan. Hahm explained that the police had received a 911 hang up call and he wanted to make sure everybody was okay. He asked whether defendant’s children had been playing on the phone. Defendant responded that his children might have been playing with the phone. Hahm asked whether anyone else was in the house, and defendant said his wife and children were in the house. Hahm asked what had happened between defendant and his wife; defendant told Hahm that they “got into a fight.” Defendant seemed agitated and upset.

Defendant started to walk away from Hahm. Hahm testified that it was at this point he entered the garage. He told defendant he just wanted to talk to him and his wife and that nobody was in trouble. Defendant “wouldn’t have of it,” continued to walk away from Hahm, and went into the house.

Thus, Hahm’s testimony showed that, before he entered the garage, there had been a 911 hang up call from the residence; Hahm heard shuffling noises coming from upstairs which sounded like someone getting pushed around; he saw defendant, appearing agitated and sweating profusely, enter the garage through a door connected to the house; defendant initially ignored Hahm’s questions about the 911 hang up call and whether anyone else was in the residence; and defendant eventually told Hahm his wife and children were inside the house and that he and his wife had had a fight. Under these circumstances, Hahm had an objectively reasonable basis for believing an occupant of the residence was seriously injured or imminently threatened with injury. Hahm’s warrantless entry into the garage, therefore, did not violate the Fourth Amendment.

Defendant cites People v. Ray (1999) 21 Cal.4th 464, in support of his argument the trial court erred by denying his motion to suppress evidence. People v. Ray is factually distinguishable. In that case, the police officers were dispatched to a residence at 3:30 p.m., based on information that “‘the door has been open all day and it’s all a shambles inside’” and that “‘[i]t’s unknown if anyone’s home but the [person reporting] doesn’t think so.’” (Id. at p. 468.) When the officers arrived, they figured “they had encountered a burglary or similar situation.” (Ibid.) The officers repeatedly knocked and announced their presence, but no one responded. (Ibid.) The officers conducted a security check to see if anyone inside might be injured, disabled, or unable to obtain help and to determine whether a burglary had occurred or was in progress. (Ibid.) No one was inside the residence, but the officers observed a large quantity of cocaine and money in plain view. (Ibid.)

The California Supreme Court, in People v. Ray, supra, 21 Cal.4th 464, 472 473, held: “[T]he People did not meet their burden of establishing circumstances warranting the officers’ actions under the emergency aid component of community caretaking. This justification requires specific, articulable facts indicating the need for ‘“swift action to prevent imminent danger to life or serious damage to property....” [Citation.]’ [Citation.] The record fails to meet this standard. The officers were concerned for the possibility of an injured person inside the residence but had no knowledge of any facts that would lead a reasonable person in their position to believe entry was immediately necessary to aid life or limb.”

Unlike the circumstances in People v. Ray, supra, 21 Cal.4th 464, Hahm knew someone, whom defendant described as his wife, and his children were inside the house when he arrived on the scene following the 911 hang up call; was told by defendant that he and his wife had had a fight; heard shuffling noises coming from an upstairs window, which sounded like someone being pushed around; and observed defendant as being sweaty, agitated, and unresponsive to his questioning. Under these circumstances, Hahm had an objectively reasonable basis for believing an occupant of the residence was seriously injured or imminently threatened with injury.

We therefore find no error in the trial court’s denial of defendant’s motion to suppress evidence, based on the appellate record before us. Our holding on this issue, however, is made without prejudice to defendant’s right to file a new motion to suppress in the event the trial court orders a new trial following the Pitchess procedures, described ante.

DISPOSITION

We grant defendant’s petition for a writ of habeas corpus, we reverse the judgment, and remand the matter to the trial court with directions to allow defendant the opportunity to file a Pitchess motion. Upon the filing of such a motion, and the trial court’s determination defendant satisfied the statutory prerequisites of a Pitchess motion and made a showing of good cause for the requested discovery, the trial court must conduct an in camera inspection of the requested personnel records for relevance. If the trial court’s inspection of those records on remand reveals no new and relevant information, the trial court must reinstate the judgment of conviction, as modified by this opinion. If the inspection reveals new and relevant information, the trial court must order disclosure as permitted by law, allow defendant an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed.

Pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), the clerk of this court is ordered to forward a copy of this opinion to the State Bar for investigation of Mr. David Scharf upon return of the remittitur. At the same time, also pursuant to Business and Professions Code section 6086.7, subdivision (b), the clerk of this court shall also notify Mr. Scharf that the matter has been referred to the State Bar.

WE CONCUR: MOORE, ACTING P. J., ARONSON, J.


Summaries of

People v. Heredia

California Court of Appeals, Fourth District, Third Division
Apr 28, 2009
G039554, G040787 (Cal. Ct. App. Apr. 28, 2009)
Case details for

People v. Heredia

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. IGNACIO RAMON HEREDIA, Defendant…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Apr 28, 2009

Citations

G039554, G040787 (Cal. Ct. App. Apr. 28, 2009)

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