Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. BF111940A, Jerold L. Turner, Judge.
Thomas M. Marovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Mathew Chan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P. J., Wiseman, J., and Cornell, J.
INTRODUCTION
Appellant, David Jacobson, was found guilty after a jury trial of felony possession of cocaine (Health & Saf. Code, § 11350, subd. (a), count one) and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364, count two). In a bifurcated proceeding, the trial court found true allegations that appellant had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The court suspended imposition of sentence and placed appellant on probation. On appeal, appellant seeks independent review by this court of information in the arresting investigators’ personnel files pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and People v. Mooc (2001) 26 Cal.4th 1216 (Mooc).
FACTS AND IN CAMERA HEARINGS
At noon on September 29, 2005, state parole agent Dan Hurtado went to see appellant at the Bakersfield Hotel. After Hurtado knocked on the door to appellant’s room, appellant answered the door. Hurtado introduced himself as appellant’s parole officer. Appellant became irritated with Hurtado shortly after he entered the room. Appellant waived a lit cigarette in his hand as he yelled at Hurtado. Appellant poked his cigarette into Hurtado’s face. Appellant picked up a stick but later put it down.
Hurtado tried to calm appellant but soon called for backup from the Bakersfield Police Department. Officers Ryan McWilliams and Ben Herrera were dispatched to the hotel where they found appellant yelling obscenities at Hurtado. Appellant was not complying with Hurtado’s commands to drop his cigarette and to keep his hands where they could be seen.
Appellant took a combative stance against the officers. Herrera tried to use a taser on appellant but failed. Herrera pushed appellant onto the bed. McWilliams grabbed appellant by the arm and succeeded in placing handcuffs on him. Appellant remained rigid and continued to yell obscenities.
Noticing that appellant’s left hand was clinched, McWilliams pried appellant’s fingers open and pulled out a rock cocaine pipe. McWilliams saw a small baggie of rock cocaine on a bed next to appellant’s right hand and right pants pocket. McWilliams seized these items. A criminalist testified that the seized baggie contained a usable amount of base cocaine.
During cross-examination, defense counsel established that a four-page police report prepared by McWilliams that was provided in discovery was not the only version of the report. There were five- and eight-page versions of the report, which were ordered by the trial court to be provided to the defense. The five-page report included the conclusion of the criminalist concerning the nature of the substance found in the baggie. The eight-page report included a complaint filed by appellant against McWilliams for using excessive force during his arrest.
Appellant filed a Pitchess motion seeking court review of the personnel files of Hurtado and the arresting officers for acts of excessive force and dishonesty. On January 11, 2006, the trial court conducted an in camera review of Hurtado’s personnel file. The court concluded there was no discoverable evidence concerning Hurtado. The court continued the hearing because the Bakersfield Police Department sought further argument concerning review of the files of McWilliams and Herrera.
On January 13, 2006, the court denied the argument of the police department. On January 13, 2006 and January 26, 2006, the court conducted in camera reviews of the personnel records of McWilliams and Herrera. The court found some information discoverable as to Herrera and ordered it disclosed. The court found no relevant information concerning McWilliams.
The court ordered that some information was discoverable as to Officer Herrera, and information from that file was provided to defense counsel. Because this information was provided to the defense and because Herrera was not called as a witness by either side, we have not reviewed his personnel file.
DISCUSSION
Appellant contends that he is entitled to independent review by this court of the personnel records made available to the trial court. We have undertaken that review, following the procedures set forth in Mooc. (Mooc, supra, 26 Cal.4th at pp. 1230-1232.) After reviewing the transcripts of the in camera hearings, as well as the personnel files of Agent Hurtado and Officer McWilliams, we find no abuse of discretion by the trial court concerning its review of either investigator’s personnel file. (People v. Hughes (2002) 27 Cal.4th 287, 330; Mooc, supra, 26 Cal.4th at p. 1232; People v. Lopez (2005) 129 Cal.App.4th 1508, 1536.) Indeed, the only complaint in Officer McWilliams’s file was the complaint of excessive force filed by appellant himself concerning the arrest leading to his conviction and this appeal. Appellant had an opportunity to fully cross-examine McWilliams concerning the events surrounding his arrest.
DISPOSITION
The judgment is affirmed.