Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Kelvin D. Filer, Judge, Super. Ct. No. TA082511
Kiana Sloan-Hillier, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Dominique R. Mitchell (defendant) appeals from the judgment entered following a jury trial resulting in her convictions of transporting a controlled substance (count 1) and possessing cocaine base (count 2). She admitted that she had suffered one prior conviction of an enumerated narcotics offense and had served two separate prison terms. (Health & Saf. Code, §§ 11352, subd. (a), 11350, 11370.2; Pen. Code, § 667.5, subd. (b).) The trial court sentenced her to an aggregate term of seven years in state prison, consisting of concurrent middle terms of respectively, four years and two years, enhanced by three years for the prior enumerated narcotics offense.
All further statutory references are to the Penal Code unless otherwise indicated.
She contends that (1) trial counsel was constitutionally ineffective, and (2) the prosecutor suborned perjury. She also requests an independent review of the Pitchess proceedings (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) as required by the decision in People v. Mooc (2001) 26 Cal.4th 1216 (Mooc).
FACTS
In count 1, defendant was charged with transporting a controlled substance. In count 2, defendant was charged with possessing cocaine base for sale, a violation of Health and Safety Code section 11351.5.
Initially, defendant was also charged with a count 3, driving when her privilege to drive was suspended or revoked for a failure to appear, in violation of Vehicle Code section 14601.1, subdivision (a). Count 3 was dismissed before the jury deliberations.
At 12:30 a.m. on December 14, 2005, two Los Angeles County Deputy Sheriffs on patrol saw defendant driving a red Nissan in Compton. Defendant had a male passenger, Lonnie Clark, in her car. She made an illegal U-turn, and the deputies stopped her. Deputy Joseph Garrido approached the driver’s door of the Nissan from the rear, shining his flashlight into the passenger area of the Nissan as he approached. He observed that the driver and the passenger were moving around in their seats, particularly defendant. The deputy described their conduct as “nervous” and “fidgety.” The deputy saw that defendant had two off-white rocks cupped in her right palm. Based on his experience, the deputy suspected that the rocks were cocaine in the base form. Defendant dropped the rocks between her legs onto the floor mat.
Deputy Garrido had defendant and her passenger get out of the Nissan. The deputy asked defendant where she lived. She replied that she lived at “1201 Greenleaf Avenue in Compton” with her two children. The deputy sent her over to the curb, where his partner, Deputy Maricela Valdivia, was standing and retrieved the two rocks from the Nissan’s floor mat.
Defendant’s address was 1201 East Greenleaf Boulevard in Compton.
Defendant gave one of the deputies her identification card, which contained a different address on Alondra Boulevard in Compton. The deputies “ran” the identification card. In the computer reply, Deputy Garrido obtained information on the status of defendant’s driver’s license and that defendant was currently on parole. He then told her that the deputies were probably going to search her residence. Defendant explained that she did not live on Greenleaf; she now claimed that she lived on Alondra Boulevard. Later, she claimed that her residence was in Palmdale or Lancaster; the deputy could not recall the specifics of this third claim.
The deputy searched defendant’s car, but found no other contraband.
Deputy Garrido arrested defendant for possession of the rock cocaine he had found on the Nissan’s floorboard. Clark was not arrested. When Deputy Garrido heard defendant’s conflicting claims about her address, he concluded that defendant was lying because she had something to hide.
At trial, the parties never focused precisely on when defendant was in custody within the meaning of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) in relation to the statements she made about her residence.
The deputies drove defendant to the Alondra Boulevard address. They discovered that the location was a closed business. They then proceeded to the Greenleaf address where they found a garage-type house behind another residence. A sergeant joined them as it is the policy of the sheriff’s department to have a supervisor present during the search of a residence.
Charles Berry, a friend of defendant, answered the door of the garage-type residence. There was a living room and a bedroom. In Deputy Garrido’s opinion, Berry appeared to have recently used drugs, and the effect of the drugs was wearing off. Two children were asleep in the bedroom.
As a result of the search of the residence, Deputy Garrido found 16 pieces of rock cocaine sitting on a dinner plate in a kitchen cupboard, and clothing for a woman and two children in the bedroom. There was no clothing in the residence for a man. In the bottom of a bedroom dresser drawer, two digital scales, six small baggies containing marijuana, and a Bank of America envelope addressed to defendant at the Lancaster address defendant had previously provided, were located.
Defendant’s cellular telephone was seized after she was taken into custody. Thereafter, the cellular telephone rang several times. Eventually, Deputy Garrido answered the telephone and said, “What’s up?” A male replied, “Am I going to get that 20 piece or what?” Based on his training and experience, the deputy concluded that the caller’s question referred to a $20 quantity of rock cocaine.
The children’s father was contacted and he took the children home with him. Berry was temporarily detained, but was not arrested. The deputies attempted to speak to the resident of the front house on Greenleaf Boulevard to determine who lived in the garage residence, but no one responded, and it appeared that no one was home.
As part of the booking procedure, defendant signed a form indicating that she was unemployed, had no occupation, and lived at 1201 East Greenleaf Boulevard, the garage residence that was searched. Before defendant signed the booking sheet, she was asked to look over the form to make sure that the information was correct. She complied.
The substances seized were tested and determined to be 6.12 grams of marijuana and respectively, 0.48 and 3.23 grams “net weight” of a substance containing cocaine in the base form.
At trial, an experienced narcotics deputy gave his opinion that the base cocaine was possessed for the purpose of sale. In reply to a hypothetical question, the deputy gave his opinion that when defendant was stopped she was probably out delivering cocaine base.
Defendant did not testify in defense. She had a private investigator, a former Los Angeles Police Department detective, examine her Nissan at her Lancaster residence. The investigator testified that the Nissan had a standard transmission. The investigator concluded that a person driving the Nissan would have had to have used his or her right hand to shift gears while driving.
During final argument, trial counsel questioned whether the deputy observed the rocks of cocaine in plain view and argued a lack of proof of dominion and control.
The jury returned verdicts of guilty of the transportation offense in count 1 and of guilty of a lesser included offense to count 2 of simple possession of a controlled substance, a violation of Health and Safety Code section 11350.
DISCUSSION
I. Ineffective Trial Counsel
Defendant contends that her trial counsel was constitutionally ineffective because he failed to “renew” the nonstatutory Miranda motion made at the preliminary hearing. Further, she argues that trial counsel was also constitutionally ineffective because he failed to impeach Deputy Garrido with conflicting testimony from the preliminary hearing.
The contention is unpersuasive as both the failure to move to suppress and to impeach Deputy Garrido may be explained as reasonable tactical choices.
A. Background
Defendant was represented by four attorneys during the proceedings. Initially she hired private counsel Jerrold Schultz to represent her at the preliminary hearing. He made an unsuccessful section 1538.5 motion at the preliminary hearing, essentially arguing that Deputy Garrido’s failure to take defendant directly to the police station after her arrest was illegal. He also urged that the illegal detention while conducting a parole search of her residence required the suppression of all illegally-seized evidence and any fruits of illegal conduct.
At the arraignment on the information, the trial court relieved Mr. Schultz as the attorney of record and appointed the Office of the Los Angeles County Public Defender. The assigned deputy public defender made a Pitchess discovery motion and represented defendant during the Pitchess discovery hearing. Subsequently, a conflict of interest was declared and the trial court appointed the Office of the Los Angeles County Alternate Public Defender, which also declared a conflict of interest. Pursuant to section 987.2, the trial court then appointed private counsel Albert DeBlanc. Mr. DeBlanc (hereinafter trial counsel) represented defendant during the trial and the remainder of the proceedings.
B. The Testimony at the Preliminary Hearing
At the combined preliminary hearing and section 1538.5 motion, Deputy Garrido testified that he stopped defendant because he observed her commit two traffic violations. After stopping her, he observed her drop the cocaine rocks, and he had her alight from the Nissan. He directed defendant to his partner, Deputy Valdivia, who was at the curb. He then entered the Nissan to recover the cocaine rocks. When defendant got out of the Nissan, he immediately asked her where she lived. She replied “on Greenleaf.” He checked her status “via our Mobile Digital Terminal On Board Computer” (MDT). That check revealed that defendant was on parole.
Defendant was then directed to Deputy Valdivia who patted her down. The deputy could not recall whether he asked defendant for identification or whether Deputy Valdivia found it during the patdown. Deputy Garrido believed that defendant was under arrest as soon as the cocaine was recovered. The identification card defendant had in her possession bore an address on Alondra Boulevard in Compton, rather than the Greenleaf residence where she earlier had claimed she lived. The deputies searched the passenger. The passenger had a Brillo pad in his pocket, an item that can be used to smoke cocaine base.
The deputy did not recall what the MDT reported as defendant’s address; the deputy agreed that the MDT might have reported defendant’s Lancaster address. However, at that point, defendant had given him the Greenleaf address in Compton.
The deputies initially drove defendant to the Alondra Boulevard address because Deputy Garrido had asked defendant again where she lived, and defendant explained that she lived in Lancaster and was staying at the Alondra Boulevard address. The deputy asked defendant whether she was in fact on parole so as to confirm the information received over the MDT, and defendant replied that she was on parole.
The deputy testified that initially, defendant said that she lived at the Greenleaf Avenue address. When told that the deputies were going to search her residence, defendant changed her “account” and said she lived in Lancaster, but had the Alondra Boulevard address. It was Deputy Garrido’s impression that the Lancaster address was a “secondary” address. Deputy Garrido said that he wanted to conduct a parole search to see whether defendant was in possession of more cocaine base. “Well, I knew she was lying. I knew she had something she was trying to hide from us, yes.”
Defendant was driven to the Alondra Avenue address because it was the closest location and it was the address on her identification card. Deputy Valdivia followed in defendant’s Nissan so that the Nissan would not be towed. The Alondra Avenue address turned out to be a vacant business, and the neighbors did not know defendant. The deputies then drove to 1201 East Greenleaf Boulevard, which turned out to be defendant’s residence.
When Berry opened the door he was asked whether defendant lived there, and he responded, “Yes.” He explained that he was babysitting defendant’s children. The deputy told him that they wanted to conduct a parole search. The man admitted Deputy Garrido and his sergeant.
After the parole search was completed, defendant was transported to the sheriff’s station.
A state parole agent testified that defendant had informed the parole authorities that she was living at 43257 Fleetwood Drive in Lancaster.
During the preliminary hearing, apart from moving to suppress, Mr. Schultz also moved to strike Deputy Garrido’s testimony concerning the conflicting statements that defendant made to him about her address. Mr. Schultz argued that defendant’s statements were obtained in violation of her rights pursuant to Miranda as where she lived might incriminate her during any subsequent parole revocation proceedings. Mr. Schultz argued, “It’s a violation of her parole status if he inquires about where she lives and without advising her of her Miranda rights.”
Thereafter, Mr. Schultz elicited from Deputy Garrido that it was his understanding that a parolee has a duty to disclose his or her residence to a police officer upon request.
The magistrate denied the motion to strike.
After further testimony, the magistrate denied the 1538.5 motion, and defendant was held to answer the charges.
C. The Test for Ineffective Trial Counsel
Recently, the court in People v. Hinton (2006) 37 Cal.4th 839, 876, reiterated the two-pronged test for demonstrating ineffective trial counsel: “To demonstrate ineffective assistance of counsel, a defendant must show that counsel’s action was, objectively considered, both deficient under prevailing professional norms and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687.) To establish prejudice, a defendant must show a reasonable probability that, but for counsel’s failings, the result of the proceeding would have been more favorable to the defendant. (Id. at p. 694.)”
In considering a claim of ineffective assistance of counsel, it is unnecessary to determine “‘whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’” (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland v. Washington, supra, 466 U.S. at p. 697.) It is not sufficient to show that the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a “reasonable probability” that absent the errors the result would have been different. (People v. Williams (1997) 16 Cal.4th 153, 215; see People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
“‘We have repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding.’ (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; People v. Wilson (1992) 3 Cal.4th 926, 936; People v. Pope (1979) 23 Cal.3d 412, 426.) The defendant must show that counsel’s action or inaction was not a reasonable tactical choice, and in most cases ‘“‘“the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged . . . .”’” (People v. Mendoza Tello, supra, at p. 266; People v. Wilson, supra, at p. 936; People v. Pope, supra, at p. 426.)’ [Citation.]” (People v. Jones (2003) 30 Cal.4th 1084, 1105.)
D. The Analysis
Defendant argues that her trial counsel was constitutionally ineffective because he failed to renew the Miranda violation Mr. Schultz raised at the preliminary hearing. On appeal, she asserts that the failure to move to suppress her statement was prejudicial because if defendant’s statements about the Greenleaf address had been suppressed, it would have significantly affected the strength of the prosecution evidence of defendant’s connection to the drugs found in that house. She also urges that trial counsel’s failure at trial to impeach Deputy Garrido with his “false testimony” from the preliminary hearing constitutes ineffective trial counsel.
1. The Motion to Suppress Statements
Miranda applies to “custodial interrogation” (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301; Miranda, supra, 384 U.S. at p. 444), by which the court meant “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda, at p. 444.) “Custodial interrogation” extends “to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” (Rhode Island v. Innis, supra, at p. 302.)
It appears that on appeal defendant is attempting to raise the claim that trial counsel had a duty at trial to challenge the use of defendant’s statements to the deputy about her address as a violation of Miranda. However, defendant has not carried her burden of showing that trial counsel did not make a reasonable tactical choice by failing to move to suppress defendant’s statements. Given that the preliminary hearing judge had ruled that the statement of address was elicited under circumstances akin to the booking process and thus fell within an exception to Miranda (Rhode Island v. Innis, supra, 466 U.S. 291; People v. O’Sullivan (1990) 217 Cal.App.3d 237), it was likely to be a futile effort on the part of trial counsel to seek exclusion of the statement at trial. Trial counsel would have been justified in concluding that such a motion would have been futile as there was no “custodial interrogation.”
It is settled that preliminary investigative inquiries designed to obtain identifying information to confirm or dispel the suspicion of criminal conduct are outside the scope of Miranda. (People v. Farnam (2002) 28 Cal.4th 107, 180-181 [police officer’s preliminary custodial inquiries, “[W]hat’s your name, what’s your birthday, where do you live?” were attempts to obtain information about the suspect’s identity and to confirm or dispel officer’s suspicions and thus outside scope of Miranda].) Furthermore, the United States Supreme Court has held that questioning during a traffic stop does not constitute “custodial interrogation” and a mere traffic violator is not “in custody” within the meaning of Miranda. (Berkemer v. McCarty (1984) 468 U.S. 420, 441-442; see also People v. Clair (1992) 2 Cal.4th 629, 679-680 [investigatory inquiries made during a temporary detention is not “custodial interrogation”].) Also, while we found no authority on the point, the deputy was questioning defendant about her address for the administrative purpose of obtaining the information necessary to search a parolee’s local residence after finding the parolee in possession of illicit narcotics.
Considering the circumstances of the deputy’s questioning and the above legal principles, trial counsel would have been justified in concluding that defendant’s statements about her address were not obtained in violation of Miranda. And, that even if he was successful in obtaining the suppression of some of defendant’s statements, at least defendant’s initial claim that she lived at the Greenleaf Boulevard residence would have been admissible. Her initial claim that she lived “on Greenleaf” was made when she was detained only on a traffic violation. That one statement was all the prosecutor needed to prove defendant’s connection to the Greenleaf Boulevard residence.
Furthermore, at both the preliminary hearing and at trial, the parties did not question the deputy in detail about the facts necessary to determining issues of “custody” and “interrogation” in the context of a Miranda claim. As the necessary facts for a proper determination of the issue of trial counsel’s effectiveness are not revealed by this record, we decline to reach that issue on appeal. (See Yarborough v. Alvarado (2004) 541 U.S. 652, 662-663 [was there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest]; Thompson v. Keohane (1995) 516 U.S. 99, 112-116 [discussing the standard for “custody”]; Stansbury v. California (1994) 511 U.S. 318, 324 [the same]; Pennsylvania v. Muniz (1990) 496 U.S. 582, 601-602 & fn. 14 [there is an exception to the requirement of Miranda warnings for routine booking questions, but the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions]; Rosa v. McCray (2d Cir. 2005) 396 F.3d 210, 221-222 [summarizing the rules for the collection of biographical or pedigree information during noninvestigative booking process]; U.S. v. Rodriguez (2d Cir. 2004) 356 F.3d 254, 260; United States v. McLaughlin (8th Cir. 1985) 777 F.2d 388, 391-392 [noting in context of pretrial service interview that a request for routine information necessary for basic identification purposes is not interrogation under Miranda, even if the information turns out to be incriminating provided that the government agent is not reasonably aware that the information sought is directly relevant to the substantive offense charged]; United States v. Sims (11th Cir. 1983) 719 F.2d 375, 379 [a government agent’s eliciting of biographical information, such as an address and telephone number, for the noninvestigative purpose of identification does not invoke Miranda]; U.S. v. McFarland (N.D.N.Y. 2006) 424 F.Supp.2d 427, 444 [discussing the requirements for “interrogation” in the context of a prison interview]; U.S. v. Lopez-Chamu (C.D. Cal. 2005) 373 F.Supp.2d 1014, 1019-1020 [discussing “interrogation” in the context of INS interviews].)
Defendant cites three cases in support of her claim. The decision in In re Martinez (1970) 1 Cal.3d 641, overruled on another point in In re Tyrell J. (1994) 8 Cal.4th 68, 89, is not on point. In that case, the court addressed the validity of a parole search, not a Miranda claim. (In re Martinez, supra, at pp. 646-647.) The decision in People v. Gastelum (1965) 237 Cal.App.2d 205, 208-209, is not helpful as the court there addressed an application of the rule in People v. Dorado (1965) 62 Cal.2d 338, 353-354.
The decision in United States v. Mata-Abundiz (9th Cir. 1983) 717 F.2d 1277 (Mata-Abundiz) is on point. Mata-Abundiz was convicted in federal court of being an illegal alien who illegally possessed a firearm. The only proof at trial of his alienage was his admission in the absence of Miranda warnings to a criminal investigator for the Immigration and Naturalization Service (INS). His statement was obtained while he was in jail on state charges. At trial, the government claimed that the statements were obtained during routine booking questioning. The court held that the background questions that the agent asked were related directly to an element of a crime that the agent had reason to suspect Mata-Abundiz had committed and the questioning was highly likely to elicit incriminating information from Mata-Abundiz. Consequently, the reviewing court held that the questioning constituted “custodial interrogation.” (Mata-Abundiz, at p. 1279.)
However, it makes no difference that the Mata-Abundiz decision cites one of the applicable legal rules necessary to a proper determination of this Miranda issue. Here we are required to decline to reach the issue of “custodial interrogation” on a record where the facts underlying the Miranda claim are not fully disclosed. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.)
2. The Impeachment
Defendant also claims that the failure to impeach Officer Garrido constituted ineffective trial counsel. It is settled that a decision to impeach a witness is inherently tactical, and thus, the failure to impeach seldom establishes incompetence. (People v. Frierson (1979) 25 Cal.3d 142, 158.) Here, defendant complains that Deputy Garrido committed perjury by claiming during the preliminary hearing that he found a utility bill in defendant’s bedroom. Later, at trial, he made the inconsistent claim that in the bedroom, he found a bank envelope bearing defendant’s Lancaster address. To prevail on this point, defendant must show that the failure to use inconsistent statements as impeachment cannot be explained as a reasonable trial tactic.
Trial counsel may well have concluded that attempting to impeach Deputy Garrido with the minimally conflicting testimony had little value to the defense. It was not reasonably likely that the jury would have seized on this inconsistency in testimony to discredit the deputy in all respects. Furthermore, it was apparent from the preliminary hearing transcript that the deputy was not well prepared. The discrepancy was simply an error. At trial, the conflicting testimony would have been easily explained by the prosecutor as the mistaken recollection of an overworked deputy sheriff.
We conclude that defendant has failed to carry her burden of demonstrating that the claimed omissions were unreasonable tactical choices that affected the verdict.
II. Suborning Perjury
Defendant contends that she was denied her constitutional right to due process of the law as guaranteed by the Sixth, Eighth, and Fourteenth Amendments because the prosecutor suborned perjury by providing the false testimony of Deputy Garrido concerning the recovered correspondence.
The contention lacks merit.
A. The Pertinent Legal Principles
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.)
The court in Napue v. Illinois (1959) 360 U.S. 264, said the following: “The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend. . . . [¶] ‘It is of no consequence that the falsehood bore upon the witness’ credibility rather than directly upon defendant’s guilt. A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth. . . . That the district attorney’s silence was not the result of guile or a desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial that could in any real sense be termed fair.’” (Id. at pp. 269-270, quoting from People v. Savvides (1956) 1 N.Y.2d 554, 557 [136 N.E.2d 853].)
A prosecutor has a duty to correct a witness’s false testimony. (Giglio v. United States (1972) 405 U.S. 150, 154.)
B. The Analysis
Defendant argues that Deputy Garrido’s testimony at the preliminary hearing was demonstrably false. She urges that the failure of the prosecutor to correct the preliminary hearing testimony was prejudicial, as absent that testimony, it is reasonably likely that defendant would have prevailed in her effort to suppress evidence pursuant to section 1538.5, and the information would never have been filed. Also, at the trial, had the prosecutor corrected the deputy’s false preliminary hearing testimony by impeaching him with it, it is reasonably likely that defendant would have been acquitted of all charges. She urges that this is especially so as Deputy Garrido’s testimony played a pivotal role in proving defendant’s guilt.
Applying the above legal principles to the issue at hand, we conclude that defendant lacks a factual basis for a valid claim of a denial of constitutional rights and a denial of due process. It is apparent from an examination of the preliminary hearing transcript and the trial testimony that at the preliminary hearing, the deputy was not well prepared to testify to the events of his contact with defendant. The deputy had forgotten the details of what was uncovered during the search, and he simply gave an erroneous description of the document actually seized from defendant’s dresser drawer. At various times during the preliminary hearing, the deputy had to refer to his police report for the specifics of what had occurred in connection with defendant’s arrest. At the preliminary hearing he seemed to be grasping to recall what happened. In contrast, at trial, the deputy had refreshed his recollection about the events of his contact with defendant and was testifying truthfully about what had occurred.
A mistake of fact testified to by a witness under oath does not constitute perjury. (People v. Rutter (2006) 143 Cal.App.4th 1349, 1357; People v. Von Tiedeman (1898) 120 Cal. 128, 136.) Defendant does not claim that Deputy Garrido was unprepared at trial and that he lied during the critical proceedings of trial as to material evidence that left a false impression with the jury. Thus, there was no preliminary hearing or trial testimony here that the prosecutor was duty-bound to correct.
On this record, defendant has failed to show error.
III. A Review of the In Camera Pitchess Proceedings
Defendant has requested that this court review the in camera proceedings to ensure that the trial court complied with the applicable law and that she obtained all the discovery to which she was entitled. We have reviewed the record as requested.
In Pitchess, supra, 11 Cal.3d 531, the California Supreme Court held that a criminal defendant is entitled to discovery of officer personnel records where the information contained in the records is relevant to his ability to defend against the charge. Later-enacted legislation implementing the court’s rule permitting discovery (Pen. Code, §§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043-1047) balanced the accused’s need for disclosure of relevant information against a law enforcement officer’s legitimate expectation of privacy in his or her personnel records. The Legislature concluded that a defendant by written motion may obtain information contained in a police officer’s personnel records if it is material to the facts of the case. (Evid. Code, § 1043, subd. (b)(3).) When presented with such a motion, the trial court rules as to whether there is good cause for disclosure. (Evid. Code, §§ 1043, 1045.) If the court orders disclosure, the custodian of the officer’s records brings to the trial court all the potentially relevant personnel records and, in camera, the trial court determines whether any of the records are to be disclosed to the defense. During the in camera hearing, neither the defense nor the prosecution is present. (Mooc, supra, 26 Cal.4th at pp. 1226-1227.)
The decision in Mooc requires that, at the time of an in camera hearing on Pitchess discovery, the trial court must facilitate appellate review of its in camera rulings, as follows. “The trial court should . . . make a record of what documents it examined before ruling on the Pitchess motion. . . . If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party’s ability to obtain appellate review of the trial court’s decision, whether to disclose or not to disclose, would be nonexistent. Of course, to protect the officer’s privacy, the examination of documents and questioning of the custodian should be done in camera in accordance with the requirements of Evidence Code section 915, and the transcript of the in camera hearing and all copies of the documents should be sealed.” (Mooc, supra, 26 Cal.4th at p. 1229, fn. omitted.)
A trial court’s ruling on a motion for access to law enforcement personnel records is reviewed for an abuse of discretion. (People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221; People v. Breaux (1991) 1 Cal.4th 281, 311-312.)
The essential facts disclosed by the unsealed record are that before trial, defendant filed a Pitchess motion. We have augmented the record with the motion for discovery, which is in the superior court file. That motion discloses that a deputy public defender filed a boilerplate motion requesting Pitchess discovery of any relevant complaints of misconduct filed against Deputies Garrido and Valdivia on behalf of defendant. The deputy public defender who filed the Pitchess discovery attached to the motion her declaration based on information and belief. In the declaration, counsel said that she anticipated that the defense at trial would prove the following: (1) that the stop was pretextual; (2) that defendant never committed any traffic violations or dropped two white rock substances; (3) that after her arrest, the deputies “drove defendant around and refused to take her to the sheriff’s station”; (4) that the deputies took her to a residence on Greenleaf in Compton, despite her having given them a Lancaster residential address and an identification card that bore an Alondra address; (5) that the deputies insisted that the Greenleaf residence belonged to defendant; and (6) that they searched the residence without a search warrant and without contacting the parole authorities. The deputy public defender further claimed that the trial evidence would demonstrate circumstances constituting a deliberate harassment without probable cause and that the deputies’ conduct was not pursuant to any lawful purpose and violated defendant’s constitutional rights.
The trial court granted the motion as to Deputies Garrido and Valdivia. It ordered discovery of any complaints involving acts of false reporting, false imprisonment, and a violation of constitutional rights “as it pertains to this sort of case.”
After conducting in camera hearings, the trial court found that each deputy had no discoverable complaints. We independently reviewed the sealed reporter’s transcripts of the in camera Pitchess hearings. Thereafter, we asked the trial court to augment our record with the records that it had reviewed in camera. It did so. After reading the further sealed reporter’s transcripts and the records that the trial court subsequently transmitted to us, we conclude that only one of the citizen complaints warranted discovery and that the trial court did not order the discovery.
Nevertheless, we decline to order a reversal for further discovery and a hearing in the superior court to determine whether defendant is entitled to a new trial. We concluded that the failure to disclose the identity of the one complainant was harmless in view of the evidence presented, and that the failure to order that discovery did not warrant a reversal. (People v. Memro (1985) 38 Cal.3d 658, 684 [any error in denying a Pitchess motion is subject to harmless error analysis].)
We ordered the superior court file to augment the record with the Pitchess motion, which was not made part of our record, and hereby order the appellate record augmented. (Cal. Rules of Court, rules 8.155(a)(1)(A) & 8.340(c).)
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.
We note, however, that when we examined the contents of the superior court file, we found one of the items considered by the court during the in camera Pitchess hearing loose and unsealed in the superior court record. This particular item of discovery was missing when we obtained the augmented record prepared on appeal by the trial court with respect to the in camera Pitchess proceedings; we assume that it was inadvertently omitted from the sealed discovery sent to us by the trial court. We will return the item to the superior court in a sealed envelope with the superior court file so that the trial court can return this item of discovery to the Los Angeles County Deputy Sheriff’s Department pursuant to law.
Also, it should be noted that on November 28, 2007, in People v. Gaines, S157008, a petition for review was granted. The California Supreme Court has requested briefing and argument limited to the issue of whether an outright reversal or a remand for a showing of prejudice is the appropriate remedy for a trial court’s erroneous denial of a Pitchess motion. In Gaines, B192177, filed August 29, 2007, an unpublished decision, Division Four of the Second District Court of Appeal held that the failure to grant discovery pursuant to a Pitchess motion required a remand for a limited in camera review of the officers’ personnel records. That court reversed with directions that if the trial court’s inspection of records on remand revealed no relevant information, the trial court should reinstate the judgment of conviction and sentence, which would stand affirmed. If the inspection revealed relevant information, however, the trial court was required to order disclosure, allow the 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. (Slip Opn. at pp. 12-13.)