Opinion
D076199
02-03-2020
THE PEOPLE, Plaintiff and Respondent, v. SHAZAD MOHAMMAD KHAN, Defendant and Appellant.
Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FWV1402809) APPEAL from a judgment of the Superior Court of San Bernardino County, Katrina West, Judge. Affirmed in part; reversed in part; remanded with directions. Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Shazad Mohammad Khan of first degree murder (Pen. Code, § 187, subd. (a); count 1). The jury also found true three firearm allegations: (1) Khan personally used a handgun; (2) he intentionally discharged a handgun; and (3) the discharge proximately caused the death of the victim (§ 12022.53, subds. (b)-(d).)
Statutory references are to the Penal Code unless otherwise specified.
The court sentenced Khan to prison for 25 years to life for the murder conviction, plus an additional 25 years to life for one of the firearm enhancements. The court stayed the sentences associated with the other two firearm enhancements.
Khan appeals, contending: (1) the court erred when it did not sua sponte instruct the jury regarding accomplice liability; (2) the court abused its discretion when it did not hold an in camera hearing regarding his Pitchess motion; (3) the case should be remanded to allow the trial court to exercise its discretion under Senate Bill No. 620 to decide whether to strike any of the section 12022.53 enhancements; and (4) remand is appropriate to allow Khan to make a record under People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We agree, and the People concede that remand is appropriate here to allow the court to exercise its discretion under Senate Bill No. 620 as well as to permit Khan to make a record under Franklin. However, we conclude Khan's other arguments lack merit.
FACTUAL BACKGROUND
Prosecution
M.R. was a member of the gang, MOB Piru, which was associated with the Bloods. P.M. also was associated with MOB Piru.
M.R. was friends with Khan and called him "Knock." M.R. believed that Khan was a member or associated with Lime-Hood Piru. M.R. saw Khan on July 7, 2014. M.R. told him that P.M. wanted to talk to Khan about the fact that his brother had been shot. M.R. arranged for them to meet. Another individual accompanied P.M. to the meeting. M.R., who had traveled with P.M. and the other individual to the meeting, went up to Khan's apartment to get him. After Khan arrived at the meeting location, P.M. punched Khan in the face. A fight ensued for a few seconds, and the individual that accompanied P.M. tried to join the fight. When the fight ended, P.M. and his friend left in a car.
M.R. stayed behind with Khan and explained that he had nothing to do with the fight. Khan was angry and wanted to fight P.M. He also noticed that his necklace was missing. M.R. called P.M.'s brother to let him know that Khan wanted to fight P.M. P.M. agreed to fight and they made arrangements to fight the following day.
The following day, M.R. went over to P.M.'s brother's house. P.M. and the individual from the night before showed up. M.R. and the other individual got into a physical altercation over the individual's involvement in the previous day's fight between P.M. and Khan. Afterwards, M.R. "had some words" with P.M. and explained that he did not want to be a part of the sucker punch that occurred the day before. They shook hands. However, M.R. told him that Khan still had a problem with him. P.M. told M.R. to "go get him."
Around 5:00 p.m., M.R. got in his car and drove to Khan's apartment to let him know that P.M. was waiting for him. Khan got in a white van with two other associates and followed M.R.'s car back to a cul-de-sac in Rialto. When they arrived, P.M. and the individual who had fought with M.R. earlier were waiting for them. When Khan and one of his friends approached P.M., M.R. walked over and told Khan that Khan was going to be fighting P.M. According to M.R., Khan already knew he was going to be fighting P.M. M.R. then told Khan's friend, "If you want to fight, you can fight the guy that tried to jump in."
P.M. and his friend approached Khan and Khan's friend in the middle of the street. The parties were about five feet from each other. M.R. had walked to the sidewalk to get out of the way. He intended to "stand back and watch" the fight. P.M. pulled up his shorts, ready to fight, and Khan pulled out a gun from his waist. Khan pulled the trigger, but a bullet was not in the chamber. Khan chambered a round and then started shooting toward P.M., at least four or five times. When the shots were fired, M.R. hid behind a car. After Khan fired the gun multiple times, he and his friend fled up the street.
P.M. was lying on his stomach. M.R. and some of the other people standing around picked up P.M., put him in the backseat of M.R.'s Trail Blazer, and took him to a hospital. P.M. was pronounced dead at the hospital.
Investigators spoke with M.R. and the other individuals at the hospital. The investigators informed them that P.M. had died. They were all transported to the Rialto Police Department and interviewed individually.
M.R. told detectives that he, his cousin A.W., and a guy named J-Rock, met P.M. in the cul-de-sac in Rialto. They were waiting for P.M.'s brother to arrive when M.R. heard gunshots. He initially told detectives he did not see the shooter.
During a second interview with detectives, M.R. admitted that P.M. and Khan had a conflict over P.M.'s former girlfriend. M.R. helped arrange a meeting, but he wanted to be a peacekeeper. But when the meeting occurred, Khan did not even attempt to talk to P.M. Instead, Khan just started shooting. M.R. said Khan was the only shooter. M.R. felt like both P.M. and Khan had used him.
A forensic pathologist performed an autopsy on P.M. A bullet was located in his left chest area, and an entry wound was found in his back. The bullet struck the left kidney, spleen, and heart. The pathologist opined that P.M. died within minutes from a gunshot wound to his chest.
Investigators searched Khan's residence in San Bernardino and found a shell casing from a .380 caliber bullet.
Khan's mother lived with her husband as well as their daughter, Khan, and one of Khan's friends, in an apartment in San Bernardino. At 9:45 p.m., on July 8, 2014, hours after the murder of P.M., Khan's mother was taking a plate of food to some neighbors when she heard five or six gunshots at her apartment. When she returned to her apartment, she discovered her husband had been shot and killed. Her daughter also had been shot.
According to Khan's mother, on the day of P.M.'s death, Khan looked agitated and he told her that two Black men from West Covina attempted to jump him in front of their apartment. Khan told her they stole his necklace. Later that day, when Khan's mother returned from work, Khan was not there, but M.R. was outside the house, bleeding with a busted lip. When she later spoke to Khan on the phone and told him his stepfather had been murdered and his sister had been shot, Khan responded, "My bad, I'm sorry." Khan later told his mother that people from the MOB gang were out to get him and would not stop until they killed everyone. They put a hit on the whole family. Khan warned his mother not to go back to the apartment. Khan's mother told investigators that she rented a white van from Enterprise for Khan and the family to go camping. She could not remember the state of the license plate, but she knew it was not from California.
Khan was located two years after the homicide by the California Department of Corrections Fugitive Apprehension Team. In October 2016, they found him hiding out at an apartment in Barstow. The officers made loudspeaker announcements for 35 to 40 minutes telling Khan to leave his apartment before he finally emerged and was arrested.
While Khan was in custody, a correctional officer searched Khan and discovered handwritten notes in his pocket. Inmates often use notes to communicate with visitors. Khan was scheduled to meet with the mother of his children not long after he was searched. The notes contained several messages that appeared to be an attempt to craft an alibi: "Tell my mom I left her house the day before the killing in the morning and went to Barstow with yu [sic]"; "I was there the nite [sic] before and woke up there and never left. . . . I wasn't at my mom's at all that day"; "I woke up with yu [sic] that morning and went to sleep with yu [sic] that night"; "I didn't have a cell phone at the time. Most of the time I used yours"; "We heard my house got shot up later that night"; "Your friend came and chilled from 12 to 6 that day and saw me there. I didn't leave your house at all."
Defense
Khan 's primary defense was a failure of proof, claiming that someone else shot the victim.
S.M., who lived near the subject cul-de-sac, saw two large Black men run from the cul-de-sac and jump into a white van with a Florida license plate. The men appeared to be about 6 feet tall and weigh around 200 pounds. Regarding her pretrial statement about the van, S.M. testified that she felt the police were trying to pressure her to say the van had an Arizona license plate. She also acknowledged initially telling police that one of the men was light skinned.
A.B. knew Khan and M.R. and saw them fight in June 2014. M.R. was upset that Khan had sex with the mother of his child. Khan attempted to walk away several times, but M.R. continued to follow him. When Khan turned his back to walk away, M.R. pushed him. When Khan turned around, M.R. punched him. The pair fought and the fight lasted about three to five minutes.
A.W., who was M.R.'s cousin and a close friend of P.M., testified that the shooter was not Khan. A.W. knew Khan and could recognize him. On the day of the shooting, A.W. and two other individuals drove to the cul-de-sac in an area where P.M. lived. Once they arrived at the cul-de-sac, there were five individuals there, including M.R. and P.M. Everyone was smoking and drinking, but no one was using narcotics. A.W. was unaware that there was supposed to be a fight involving P.M. and Khan. M.R. cut his lip while rough housing with someone. M.R. then left for about 30 minutes to run an errand.
After M.R. returned, two men arrived at the cul-de sac. They were about six foot to six foot three inches tall, 200 to 220 pounds. A.W. was about 50 feet away when he saw them. They had dark skin. P.M. started to walk up to the two men, and then, A.W. heard shots. A.W. did not see who was shooting because he hid behind a parked car. After the shooting, A.W. did not give the police any of this information because he does not talk to the police. However, A.W. acknowledged that he told investigators he did not see who the shooter was.
During a jailhouse phone call, A.W. was told by his father that M.R. "went in there and told the truth." A.W. indicated that he was aware of what M.R. did after talking to "what's his name up in here." A.W. also acknowledged that Khan sent him noodle soup while they were both in custody before the trial. He did not interpret the soup as a bribe.
DISCUSSION
I
ACCOMPLICE JURY INSTRUCTIONS
A. Khan's Contentions
Khan contends the trial court erred by not sua sponte instructing the jury under CALCRIM No. 334 that accomplice testimony cannot be used to convict a defendant unless the testimony is corroborated. In this regard, Khan argues there was substantial evidence that M.R. was subject to prosecution for Khan's murder of P.M. because M.R. facilitated the assault by setting up the subject fight, in which it was reasonably foreseeable that the fight would end in gun play. In other words, he maintains that M.R. could have been guilty of murder under the natural and probable consequences doctrine. He therefore asserts that "[f]ailure to give any accomplice liability instructions was prejudicial under any standard of prejudice." We disagree.
B. CALCRIM No. 334
CALCRIM No. 334 tells a jury that it must determine if a witness is an accomplice of the defendant: "Before you may consider the [testimony of a particular witness] as evidence . . . , you must decide whether [the witness] was [an] accomplice . . . . A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if: [¶] 1. He or she personally committed the crime; [¶] OR [¶] 2. He or she knew of the criminal purpose of the person who committed the crime; [¶] AND [¶] 3. He or she intended to, and did in fact, []aid, facilitate, promote, encourage, or instigate the commission of the crime . . . . [¶] The burden is on the defendant to prove that it is more likely than not that [the witness was an accomplice]."
CALCRIM No. 334 further informs jurors that, if the witness is an accomplice, the jury cannot rely on the accomplice's testimony unless there is evidence of corroboration: "If you decide that a [witness] was an accomplice, then you may not convict the defendant of [the charged crime] based on his or her [testimony] alone. You may use [the testimony] of an accomplice . . . to convict the defendant only if: [¶] 1. The accomplice's [testimony] is supported by other evidence that you believe; [¶] 2. That supporting evidence is independent of the accomplice's [testimony]; [¶] AND [¶] 3. That supporting evidence tends to connect the defendant to the commission of the [crime]. [¶] Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime[s], and it does not need to support every fact [about which the accomplice testified]. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime." (See § 1111.)
A court must instruct pursuant to CALCRIM No. 334 only if there is substantial evidence that a witness was an accomplice. (People v. Boyer (2006) 38 Cal.4th 412, 466.) The question, therefore, is whether there was substantial evidence that M.R. intentionally aided, facilitated, promoted, encouraged, or instigated the commission of the charged crime. (CALCRIM No. 334; see People v. Marshall (1997) 15 Cal.4th 1, 40.)
C. Analysis
Khan asserts that M.R. facilitated the fight between Khan and P.M., knowing that each participant was a gang member who had got into a physical altercation the day before. P.M. had taken Khan's chain during the previous fight, and M.R. indicated that Khan and P.M. had an ongoing conflict regarding P.M.'s girlfriend. In addition, Khan points out that evidence was presented at trial that when a gang member becomes a crime victim, he does not call the police, but takes matters into his own hands. Finally, Khan emphasizes that M.R. fought one of P.M.'s friends on the day of the shooting.
Against this backdrop, Khan maintains that, as an accomplice to the assault, M.R. also was subject to prosecution for the murder of P.M. because it was a natural and probable consequence of the assault. (See People v. Prettyman (1996) 14 Cal.4th 248, 260 ["a person encouraging or facilitating the commission of a crime [can] be held criminally liable not only for that crime, but for any other offense that was a 'natural and probable consequence' of the crime aided and abetted"].) Further, Khan asserts that People v. Smith (2014) 60 Cal.4th 603 (Smith) is instructive here. It is not.
Here, we are concerned with a trial court's obligation to sua sponte instruct the jury under CALCRIM No. 334. Smith, supra, 60 Cal.4th 603 did not address that issue whatsoever. Instead, in that case, the court was concerned with what a prosecutor was required to prove under the natural and probable consequences doctrine. To this end, our high court concluded: "To establish aiding and abetting liability under the natural and probable consequence doctrine, the prosecution must prove the nontarget offense was reasonably foreseeable; it need not additionally prove the nontarget offense was not committed for a reason independent in the common plan to commit the target offense." (Id. at p. 614.) In reaching its conclusion, the Supreme Court determined the jury instruction based on CALCRIM No. 402 did not correctly state the law of aider and abettor liability. (Smith, at p. 617.)
In Smith, the trial court instructed the jury based on CALCRIM No. 402, including the following: " 'A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. . . . If the murder or voluntary manslaughter was committed for a reason independent of the common plan to commit the disturbing the peace or assault or battery, then the commission of murder or voluntary manslaughter was not a natural and probable consequence of disturbing the peace or assault or battery.' " (Smith, supra, 60 Cal.4th at p. 612.)
Although he acknowledges "there are factual differences between [the instant action] and Smith," Khan maintains those differences are "immaterial to the more general idea of our Supreme Court continuing to uphold, at least in the context of gang violence, murder liability under natural and probable consequences to accomplices in assault offenses if murder is a reasonably foreseeable consequence." Thus, despite the factual distinctions, Khan insists his case and Smith involve the same basic premise: the victim's murder was a reasonably foreseeable consequence of a violent assault between gang members set up by an accomplice. Yet, we are not prepared to disregard the facts of the instant matter in accepting Khan's premise. Indeed, the record before us belies Khan's thesis, especially when compared to the facts in Smith.
Smith, supra, 60 Cal.4th 603 was a quintessential gang case. In that case, the defendant was a member of the Gateway Posse Crips (Gateway Posse). The Pueblo Bishop Bloods (Pueblo Bishop), who were known to carry guns, were enemies of the Gateway Posse. (Id. at pp. 606-607.) The defendant's brother was a member of the Young Ass Hustlers Squad (YAH), which was affiliated with Pueblo Bishop. (Ibid.) YAH members were upset with the defendant's brother because he was not "adequately representing or participating in the gang." (Id. at p. 607.) When the defendant found out that YAH members planned to discipline his brother, he verbally confronted a few YAH members at a liquor store. According to one of the YAH members, the defendant threatened to kill one of the group " 'over [his] brother' " and " 'threw' " a gang sign as he left. (Ibid.)
A member of YAH contacted a member of Pueblo Bishop about the incident with the defendant. Later, Tovey M., a member of Pueblo Bishop, confronted the defendant at defendant's apartment. The defendant told Tovey M. that he and some of his " 'homies' " would be present when YAH members " 'jumped out' " the defendant's brother. (Smith, supra, 60 Cal.4th at p. 608.) In response, Tovey M. said, " 'I know you're not talking about gun play.' " (Ibid.)
" 'To join a criminal street gang, members often have to be "jumped in," which typically involves three or four members of the gang beating the potential new member for a set period of time while the new member does his or her best to fight back. Likewise, in order to get out of a gang, a member must be "jumped out," which typically involves a beating of that member by the same members who jumped him or her into the gang.' " (Smith, supra, 60 Cal.4th at p. 608.)
The defendant took his brother to be "jumped out" of YAH and brought three other individuals with them to make sure "things did not get out of hand." (Smith, supra, 60 Cal.4th at p. 608.) One of those individuals had a gun, but agreed to only shoot if shot at first. (Id. at p. 609.) When they arrived, they approached a group of men that included members of YAH and Pueblo Bishop. At least two men in that group had guns. (Ibid.)
The defendant pointed at two men and told them he wanted them to " 'put [his] brother off' " but not to kick him in the head. Two men stepped forward and began to fight the defendant's brother, bloodying and knocking him to the ground. At that point, the defendant intervened and picked up his brother. (Smith, supra, 60 Cal.4th at p. 609.) "What happened next was the subject of much discussion at trial." (Ibid.)
One witness testified that the defendant exchanged words with a YAH member and then tried to punch him. After which, gunshots were heard. (Smith, supra, 60 Cal.4th at p. 609.) Another witness stated that a YAH member came near the fight and the defendant took a swing at him. Then a member of Pueblo Bishop pulled out a gun and started firing. (Ibid.) A third witness testified that the defendant pulled out a gun and pointed it at several people when his brother was getting beaten. Then two members of Pueblo Bishop pulled out guns and began firing. (Id. at pp. 609-610.) A fourth witness claimed to have seen the defendant with a handgun, but never saw him fire a shot. (Id. at p. 610.)
Two of the defendant's associates were shot and killed. Among others, the defendant was charged with the murder of the two victims under the theory that he was an aider and abettor of those who actually did the shooting. (Smith, supra, 60 Cal.4th at p. 610.)
At trial, the prosecutor's theory was that a member of Pueblo Bishop was the shooter. (See Smith, supra, 60 Cal.4th at p. 612.)
We discuss the facts of Smith, supra, 60 Cal.4th 603 in great detail to illuminate the stark differences between that case and the instant action. Smith can only be explained in terms of criminal street gangs. It was tried as a gang case. In other words, the fact that gang members were involved was essential to that case. The same cannot be said about the instant action.
The use of gang evidence in the instant matter was limited. Although there was evidence that M.R. and P.M. were associated with MOB Piru, and Khan was associated with Lime-Hood Piru, there was scant evidence presented about either gang. Here, there was no expert witness testimony specifically discussing these two gangs. Indeed, unlike the evidence presented about the various gangs in Smith, supra, 60 Cal.4th 603, there was nothing proffered at trial below that MOB Piru or Lime-Hood Piru gang members routinely carried guns or that the two gangs were rivals. At most, a prosecution witness offered testimony that gang members typically are "very reluctant to cooperate with law enforcement," gang members who testify at trial against other gang members face negative consequences (including death), and that gang members take matters into their own hands and do not call law enforcement for assistance.
In addition, Khan was not charged with any gang related offenses or enhancements. In contrast, the defendant in Smith, supra, 60 Cal.4th 603, was charged and convicted of active participation in a criminal street gang (§§ 187, subd. (a), 186.22, subd. (a)), and the jury found true the allegation that the murders were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1).) (Smith, at p. 610.) This distinction is all the more important because Khan's argument is that the trial court had a sua sponte obligation to provide an accomplice jury instruction. He bases his argument on M.R.'s involvement setting up the fight between Khan and P.M., coupled with his claim that it was reasonably foreseeable that the altercation would end in gun play because the two participants were gang members. Although they may have been gang members, this was not the focus at trial. Indeed, on the record before us, the fight participants' respective gang memberships was little more than a tangential fact rather than an important piece of the evidentiary puzzle, necessary to explain what occurred during the fight.
Khan, for the first time, argues M.R. could have been charged as his accomplice. To this end, Khan paints a picture of two gang members meeting to fight where the logical consequence of such an encounter is that a shooting will occur. Although that certainly was the case in Smith, supra, 60 Cal.4th 603, the record before us neither suggests nor supports such a theory. The prosecution below did not try this matter as a gang case. It did not charge M.R. as an accomplice. Having not done so, the defense had the burden to produce enough evidence to create a triable issue of fact regarding whether M.R. was an accomplice whose testimony required corroboration. (See People v. Snyder (2003) 112 Cal.App.4th 1200, 1219; People v. Fauber (1992) 2 Cal.4th 792, 833-834; People v. Sully (1991) 53 Cal.3d 1195, 1228.) Khan's trial counsel offered no such evidence or argument. Instead, the defense opted for a different strategy, arguing that M.R. was a liar, he "hate[d]" Khan, and he was protecting the identity of the real shooter. No one argued that it was reasonably foreseeable that, when M.R. helped set up the altercation between Khan and the victim, that Khan would end up shooting the victim.
Therefore, considering the record before us, we determine there was not sufficient evidence that M.R. was an accomplice to the murder of P.M. under the natural and probable consequences doctrine. Accordingly, Khan fails to demonstrate that the court had a sua sponte duty to instruct on corroboration of accomplice testimony pursuant to CALCRIM No. 334.
II
KHAN'S PITCHESS MOTION
A. Khan's Contentions
Khan asserts the trial court abused its discretion in denying his Pitchess motion as to Detective David Padilla without conducting an in camera examination of Padilla's personnel records. We disagree.
B. Background
Khan filed a motion for discovery of Padilla's personnel records under Pitchess, supra, 11 Cal.3d 531. By way of the motion, Khan sought documents concerning lack of credibility, prior wrongful acts involving moral turpitude, and prior acts of dishonesty and untruthfulness, pertaining to Padilla. In counsel's declaration attached to the motion, he claimed that Padilla "improperly manipulated the identification of [Khan] as the shooter and of the vehicle allegedly involved in the shooting." Specifically, counsel alleged Padilla used manipulative interrogation tactics like showing M.R. a photograph of Khan without being included in a six-pack display, which was highly suggestive. Moreover, Padilla provided a photo of the actual minivan to M.R. and S.M.
In his opening brief, Khan does not discuss the showing of the photograph of the white van to the two witnesses or explain why such action supports his claim the court erred in failing to hold an in camera review of Padilla's personnel file. Consequentially, we do not discuss this issue here.
The declaration also alleged the detective made two false statements in his report, including that he told Khan's mother that Khan was a suspect, but he told M.R. the next day that it was unknown if Khan was a suspect. The declaration also alleged Padilla concluded Khan was a member of " 'Lime Hood Piru' " during his interview with Khan's mother, but during his interview with M.R., he claimed it was unknown if Khan was a confirmed gang member.
The City of Rialto filed an opposition to the motion.
At the hearing on the motion, Khan's trial counsel argued that the inconsistencies in Padilla's report raised a sufficient issue under Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick), to meet the defense's burden of good cause.
The City of Rialto disagreed that there was a showing of good cause, noting that the police report statements reflected a stream of consciousness of the detective's mental processes and suggested, at most, poor report writing rather than a lack of credibility.
After considering the motion, opposition, and evidence and hearing oral argument, the trial court denied the motion. The court explained:
"Defense relies on two theories, both to get to the Court conducting an in-camera review regarding the truth, veracity, honesty of the officer involved here.
"The first is the manipulative interrogation tactics that had been used on a percipient witness to the offense—actually, witnesses, I would say, sort of viewing it in conjunction with—as I said, I reviewed the other motion. Defense's basic assertion is that the officer made false statements to at least one witness, showed evidence of photographs to witnesses of a—of the vehicle that was involved in this case instead of sort of a six-pack system. That's more from the other motion, but with relation to the allegation of the—for manipulative interrogation tactics, the Court does not find sufficient cause there to conduct the in-camera review pursuant to Warwick.
"I do not feel the Defense has met the burden there of showing sufficiently that the officer's veracity or trustworthiness was sufficiently called into question by the evidence—the arguments, the assertion of Counsel that I reviewed.
"Likewise, as to the false statements, same as alleged to be false are the own officer's—we'll say characterizations of the officer's own mindset, characterizations of what he thought of the evidence in the case, so it seems. This isn't a case where an officer report says, 'Two guns were found at the scene,' and later says, 'One gun was found at the scene' or something as verifiable as a contradiction like that.
"I don't—I have a very hard time finding just based on the differing characterizations by the officer of the status of his investigation, different points in a report that is over 200 pages long—or it was over 200 pages total. I do not find it meets the burden under Warwick of warranting an in-camera review for those purposes also."
C. Relevant Law
Pitchess supra, 11 Cal.3d 531 established that a criminal defendant may " 'compel discovery' of certain relevant information in the personnel files of police officers by making 'general allegations which establish some cause for discovery' of that information and by showing how it would support a defense to the charge against him." (Warrick, supra, 35 Cal.4th at pp. 1018-1019.) The Legislature later codified the Pitchess holding in Penal Code sections 832.7 and 832.8, and Evidence Code sections 1043 through 1045. (Warrick, at p. 1019.) In short, the Pitchess statutory "scheme entitles a defendant to information that will 'facilitate the ascertainment of the facts' at trial [citation], that is, 'all information pertinent to the defense.' " (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 14.)
Pitchess discovery under the statutory scheme proceeds in a two-step process. Under the first step, the defendant must file a written motion describing the type of records or information sought, supported by an affidavit showing "good cause" for the discovery or disclosure, setting forth the materiality of the discovery or disclosure to the "subject matter involved in the pending litigation," and stating upon reasonable belief that the government agency at issue has the records or information requested. (Evid. Code, § 1043, subds. (a) & (b); People v. Mooc (2001) 26 Cal.4th 1216, 1226.) Then, if the trial court finds good cause for the discovery, it conducts an in camera review of the pertinent documents to determine which, if any, are relevant. (Evid. Code, § 1045, subd. (b).) " 'Subject to statutory exceptions and limitations . . . the trial court should then disclose to the defendant "such information [that] is relevant to the subject matter involved in the pending litigation." ' " (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086.)
Typically, Pitchess motions are brought pretrial while defense counsel is preparing its defenses for trial. At this stage, a defendant need satisfy only a "relatively low" threshold to establish good cause. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83.) Nevertheless, a defendant is not entitled to an in camera review of peace officer personnel records without " 'establish[ing] a plausible factual foundation' " for the allegation of officer misconduct. (Warrick, supra, 35 Cal.4th at p. 1025.) The defendant "must present . . . a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents." (Ibid.) A sufficient scenario is "one that might or could have occurred." (Id. at p. 1026.)
The trial court is vested with broad discretion when ruling on a Pitchess motion seeking discovery of police officer personnel records. (People v. Samayoa (1997) 15 Cal.4th 795, 827.) We review a trial court's decision concerning the discovery of material contained in officer personnel records for an abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.)
D. Analysis
Khan maintains that his proposed defense at trial was that Padilla's manipulative interrogation techniques led M.R. to misidentify Khan as the shooter. To this end, he notes that (1) M.R. did not first identify Khan as the shooter; (2) in interviewing Khan a couple days after the shooting, Padilla led M.R. to believe he was a suspect for the homicide; and (3) Padilla asked M.R. to identify Khan from a single photograph without using a six pack of photographs or giving a standard lineup admonition. Khan concludes these acts by Padilla illustrated "a plausible factual scenario of officer misconduct" that satisfied the " 'relaxed' " and " 'low threshold' " standard of good cause, warranting the trial court's in camera review of Padilla's personnel file. (See Warrick, supra, 35 Cal.4th at pp. 1016, 1019.) However, it appears that Khan has done little more than to conclude Padilla's actions constitute officer misconduct. He does so without any citation to case law that supports his position. He does not discuss in much detail why he believes Padilla's actions were misconduct. Instead, using the low threshold of establishing good cause in the Pitchess context, he asserts he has done enough. We disagree.
Here, we are not troubled by Padilla's interrogation of an eyewitness to the shooting (M.R). The nature of the interrogative process sometimes requires law enforcement to be forceful, persistent, and, at times, manipulative. (See People v. Jones (1998) 17 Cal.4th 279, 297-298.) Nevertheless, Khan claims Padilla's techniques were somewhat untoward and encouraged M.R. to misidentify Khan as the shooter. In this sense, Khan is arguing M.R.'s identification of Khan was not voluntary. In evaluating the voluntariness of a statement, we look at the totality of the circumstances. (Cf. Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226; accord, Jones, at p. 296.)
After M.R. called Padilla to inquire about his vehicle, which was being processed by a crime scene specialist, Padilla told M.R. that he needed to talk to him. So, he picked up M.R. and took him to the station to be interviewed. During the interview, Padilla asked M.R. about what he had heard on social media or the streets about the shooting. Padilla told M.R. that Padilla "had received information that [M.R.] was being blamed for . . . the shooting that occurred . . . ." According to Padilla, when he told M.R. about what he knew, M.R. "took a deep breath and had a long distance stare." Padilla "then noticed that [M.R.] realized that I knew details about the incidents and began to tell me about what lead up to the shooting."
Padilla then mentioned names he had discovered during his investigation of the shooting and took out "several pictures of different possible people involved and placed them out on a table in the interview room for [M.R.] to see and identify as he knew them." M.R. identified P.M., A.W., and one other individual pictured in the various photographs.
Padilla asked M.R. "if he knew of a person named Shazad." M.R. denied that he did. Padilla then showed M.R. a picture of Khan believing M.R. would identify Khan as a member of MOB Piru. M.R. looked at the picture of Khan and said that he "was somebody that stayed around the corner where he used to live in San Bernardino." M.R. identified Khan as "Knock" and stated that he was not a member of MOB Piru, but instead, belonged to some gang from Compton.
Padilla then placed several other photographs on the table and asked M.R. if he recognized anyone in the pictures. He only identified one other individual, stated that he did not know him well, and that he had seen him with Khan. M.R. then described the events that led to the shooting of P.M. He stated that Khan was the only shooter. Then Padilla asked M.R. to write down Khan's nickname and to initial Khan's picture. "[A]fter a bit of hesitation[,]" M.R. signed the picture.
Far from using manipulative tactics, Padilla's questioning of M.R. was fairly pedestrian. He did not threaten M.R. He did not make promises of leniency. It is not apparent from the report of the interview that Padilla lied to M.R. He did not show M.R. a picture of Khan and ask him if Khan was the shooter. Instead, he asked M.R. to identify numerous people from a variety of photographs. He did ask M.R. if he knew Khan and whether a photograph depicted Khan. However, he did not ask M.R. if Khan was the shooter and did not ask about Khan's involvement in the shooting. Rather, it was M.R. who volunteered that Khan was the shooter, and after that information was provided, Padilla asked M.R. to initial the picture of Khan, which he had already used to identify him. Padilla's actions were not misconduct. To the contrary, Padilla's actions can only be described as good police work. As such, there was no evidence of officer misconduct based on Padilla's interview of M.R. that provided good cause under Warrick, supra, 35 Cal.4th 1011.
In addition, Khan points out, in memorializing his interview with M.R., Padilla claimed "at the time this report was being written, it was unknown if [Khan] was a suspect of th[e] shooting. Additionally, it was unknown if [Khan] was a confirmed gang member." However, Khan emphasizes that earlier in the report, when discussing his interview with Khan's mother the day before, Padilla had told Khan's mother that Khan was a suspect in the shooting. Also, Khan asserts Padilla had confirmed that Khan was member of the Lime Hood Piru gang after his discussion with Khan's mother, but before he talked to M.R. Therefore, Khan maintains these inconsistencies in the Padilla's report establish good cause to warrant an in camera review of Padilla's personnel file. We are not persuaded.
We agree with the trial court that these "differing characterizations by the officer of the status of his investigation, [at] different points in a report that is over 200 pages long" do not meet even the low burden of good cause under Warwick, supra, 35 Cal.4th 1011. Moreover, as the People contend, these "inconsistent" statements are not actually inconsistent. It is unclear from the report whether Khan's mother was told that Khan was a suspect in the homicide investigation. Instead, the report indicates that an investigating officer discovered from Khan's mother that Khan "matched the description of one of the suspects." Khan's mother was informed that her son "was involved in a shooting" but it does not appear she was informed that he was a suspect. Thus, contrary to Khan's assertion, the police report does not state that his mother was not told that he was a suspect the day before Padilla interview M.R. Further, even if she was so told, we fail to see how this would constitute officer misconduct.
Similarly, although Khan alleged Padilla offered inconsistent statements about Khan's gang affiliations, those statements, too, were not actually inconsistent. The two statements that (1) he was a member of Lime Hood Piru but (2) it was unknown if he was a confirmed gang member merely reflected, in context, that the detective knew Khan was a confirmed member of the Lime Hood Piru gang, but was unsure if Khan was also part of the MOB Piru gang. Thus, when talking with M.R., Padilla asked him whether Khan was a member of MOB Piru. It is clear from the report that Padilla did not know whether Khan was a member of MOB Piru, but he expected M.R. to identify Khan as a member of that gang. Thus, we agree with the People's characterization of Khan as an unconfirmed gang member as indicating Padilla's lack of knowledge of Khan's membership in MOB Piru. Thus, Khan's allegations about the inconsistent police report do not present a plausible scenario by which Padilla's conduct provided good cause for an in camera review of his file.
Again, even if we were to find Padilla's report inconsistent about whether Khan was a confirmed gang member, we do not see how such an inconsistency could be construed as evidence of officer misconduct. At worst, it shows that Padilla was less than precise in writing his report or did not remember what Khan's mother told him the day before.
In summary, the trial court acted reasonably in determining what was plausible as described by Khan's proposed factual scenario and his defense theory. (See People v. Thompson (2006) 141 Cal.App.4th 1312, 1318-1319 [affirming denial of Pitchess motion]; People v. Galan (2009) 178 Cal.App.4th 6, 12-13 [same].) Because of the implausibility of any officer misconduct, and the lack of any actual issues with the detective's report or interviewing tactics rising to the level of officer misconduct, the trial court did not abuse its discretion in denying the Pitchess motion.
III
FIREARM ENHANCEMENTS
Sections 12022.5 and 12022.53 provide for sentencing enhancements related to the use of firearms in the commission of felonies. (§§ 12022.5, subds. (a)-(b), 12022.53, subds. (b)-(d).) Before January 1, 2018, the court was barred from striking those enhancements. (See former §§ 12022.5, subd. (c), 12022.53, subd. (h).) As of January 1, 2018, those sections give the court discretion at the time of sentencing to strike or dismiss the enhancements. (See Sen. Bill No. 620 (Stats. 2017, ch. 682, §§ 1-2).) These provisions apply retroactively to non-final judgments. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.)
Khan urges us to remand for the court to consider exercising discretion under these provisions. The People concede that the case should be remanded on this issue; thus, we will so order.
IV
RECORD FOR A YOUTH OFFENDER PAROLE HEARING
When Khan was sentenced in August 2017, section 3051 provided that a person convicted of certain offenses committed before the person turned 18 years old, and for which the sentence was 25 years to life, would generally be eligible for release on parole during the 25th year of incarceration at a youth offender parole hearing. (§ 3051, former subd. (b)(3).) Effective January 1, 2018, section 3051 applies to those who committed crimes when they were 25 years of age or younger, which would include Khan. (§ 3051, subd. (a), as amended by Stats. 2017, ch. 675, § 1.) The change in section 3051 applies retrospectively to all eligible youth offenders. (Franklin, supra, 63 Cal.4th at p. 278.)
In Franklin, the court determined that juvenile offenders must "have an adequate opportunity to make a record of factors, including youth-related factors, relevant to the eventual parole determination," including "any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors." (Franklin, supra, 63 Cal.4th at pp. 284, 286.) The court remanded the matter to ensure that the defendant had a sufficient opportunity to make a record for his future parole hearing. (Id. at pp. 286-287.) Khan contends, and the People agree, we should do so here. Therefore, we conclude that the matter also should be remanded to the trial court to allow Khan to make a record for a future offender parole hearing.
DISPOSITION
The matter is remanded for the trial court to exercise discretion to strike or dismiss enhancements imposed under Penal Code sections 12022.5 and 12022.53, and for Khan to have an opportunity to make a record for a future youth offender parole hearing. The court shall make any necessary amendments to the abstract of judgment and forward it to the California Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
HUFFMAN, Acting P. J. WE CONCUR: AARON, J. DATO, J.