Opinion
B320372
03-10-2023
THE PEOPLE, Plaintiff and Respondent, v. DANIEL PADILLA, Defendant and Appellant.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jason Tran and Kristen J. Inberg, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA094694, Mildred Escobedo, Judge. Affirmed.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jason Tran and Kristen J. Inberg, Deputy Attorneys General for Plaintiff and Respondent.
FEUER, J.
Daniel Padilla appeals from a judgment of conviction entered following the trial court's second postconviction in camera Pitchess review of personnel records for three City of Redondo Beach Police officers. In 2017 a jury found Padilla guilty of three counts of assault with a deadly weapon upon a peace officer, and the trial court found true Padilla had suffered two prior felony convictions for which he had served prison terms within the meaning of Penal Code section 667, subdivision (b).Padilla was sentenced to an aggregate sentence of six years in state prison.
Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536-538 (Pitchess).
All further undesignated statutory references are to the Penal Code.
On appeal, we conditionally reversed and remanded for the trial court to conduct an in camera Pitchess review of personnel records for three City of Redondo Beach Police officers and to provide Padilla with an opportunity to request a hearing on his ability to pay the court fines and assessments the trial court imposed. (People v. Padilla (June 18, 2019, B285989) [nonpub. opn.] (Padilla I).)
On October 10, 2019 the trial court conducted an in camera Pitchess review and determined there were no discoverable documents. It then reinstated the judgment. Padilla again appealed, and we concluded the trial court abused its discretion in failing to turn over information in City of Redondo Beach Police Officer Brian Weiss's personnel file and failing to inquire of the custodian of records whether he reviewed and brought to the trial court all "potentially relevant" documents. We also found the trial court erred in reinstating the fines and assessments without providing Padilla an opportunity to request an ability to pay hearing, and his one-year prior prison term enhancement and the court's true finding on the two prison prior enhancements had to be stricken under Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1). (People v. Padilla (Oct. 19, 2020, B302320) [nonpub. opn.] (Padilla II).)
On November 12, 2020 the trial court conducted another in camera Pitchess review and ordered information relating to two complaints (the same two we identified in Padilla II as complaints 1 and 3) be turned over to Padilla's counsel by November 20, 2020. The court found there was no other discoverable information.
Based on the Pitchess discovery, Padilla filed a motion for new trial claiming the testimony of two Pitchess witnesses "would have raised a doubt in at least one juror's mind about the sufficiency of the testimony of Officer Weiss and his colleagues to prove the case." The People filed an opposition, and the trial court denied the motion. On September 22, 2021 the trial court orally resentenced Padilla by striking the one-year prior prison term enhancement, suspending or deleting the fines and fees previously imposed, and issuing a minute order that stated the sentence was "nunc pro tunc to date of original sentence" to reflect a five-year sentence, which Padilla had served.
Padilla requests we review the sealed record of the November 12, 2020 in camera review to determine whether the court disclosed all relevant information in response to his Pitchess motion. Padilla also contends and the People concede the trial court should have amended the abstract of judgment to reflect the trial court's September 22 oral pronouncement of judgment.
Padilla does not challenge the denial of his motion for new trial or resentencing.
We conclude all relevant Pitchess information has been disclosed to Padilla. However, we agree the abstract of judgment must be corrected to accurately reflect the oral pronouncement of judgment. Accordingly, we affirm the judgment but order the trial court to correct the abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial, Verdicts, and Sentencing
On July 21, 2016, City of Redondo Beach Police Sergeant Michael Strosnider and Officer Joshua Spry were at the Manor Motel in Hawthorne for a probation search of Kelly Kimbell. Among other things, the officers found bullets, which Kimbell claimed belonged to Padilla. When Padilla drove into the parking lot, Kimbell yelled for him to leave. Officer Spry directed Padilla to put his vehicle in "park" or turn it off, but Padilla instead reversed out of his parking space, forcing Officer Spry to move out of the way. Officer Spry pointed his firearm at Padilla's vehicle and ordered him to stop, but Padilla continued backing out of the space and drove at a high rate of speed out of the parking lot. (Padilla I, supra, B285989.)
After learning from Kimbell that Padilla would be at the Best Western Hotel in Lawndale on August 2, 2016, Sergeant Strosnider, as well as City of Redondo Beach Police Lieutenant Joseph Hoffman and Officers Salvador Garcia, Ryan Harrison, Weiss, and Derek Theurer went to the Best Western on August 2 to arrest Padilla. When Padilla drove into the parking lot of the Best Western, Lieutenant Hoffman and Officers Garcia and Theurer followed him and positioned their cars to prevent him from exiting the lot. Once Padilla saw the police cars, he drove in reverse out of the parking lot and headed directly toward the police cars at top speed. A shootout ensued, with Officers Harrison, Weiss, Garcia, and Hoffman shooting at Padilla as Padilla drove toward one and then another of the officers' vehicles. Padilla's vehicle crashed into Lieutenant Hoffman's parked vehicle, and Padilla was arrested. A loaded firearm was recovered from his car. (Padilla I, supra, B285989.)
The jury found Padilla guilty of three counts of aggravated assault (§ 245, subd. (c)) arising from the Best Western incident and acquitted him of the aggravated assault count arising from the Manor Motel incident. The trial court found the two prison prior allegations to be true. The court sentenced Padilla to six years in prison, consisting of the upper term of five years on count 2 for aggravated assault, with concurrent five-year terms for counts 3 and 4, and a consecutive term of one year pursuant to section 667.5, subdivision (b), for a single prison prior. The court dismissed the remaining prison prior allegation. The court imposed a $300 restitution fine (§ 1202.4), stayed a parole revocation restitution fine in the same amount (§ 1202.45), and imposed $120 in court operations assessments (§ 1465.8) and $90 in criminal conviction assessments (Gov. Code, § 70373). (Padilla I, supra, B285989.)
B. Padilla's Pitchess Motion
Prior to trial, Padilla filed a Pitchess motion under Evidence Code section 1043 seeking discovery of personnel records concerning excessive force, fabrication, and falsification of police reports involving Sergeant Strosnider, Lieutenant Hoffman, and Officers Spry, Garcia, Harrison, and Weiss. The trial court granted the motion as to Sergeant Strosnider, Lieutenant Hoffman, and Officer Spry, but it denied the motion without explanation as to Officers Garcia, Harrison, and Weiss. (Padilla I, supra, B285989.)
C. Padilla I
Padilla appealed, and we concluded Padilla had shown good cause for discovery of the personnel records of Officers Garcia, Harrison, and Weiss. We also concluded Padilla should have had an opportunity to request a hearing demonstrating his inability to pay the fines and assessments in accordance with our opinion in People v. Duenas (2019) 30 Cal.App.5th 1157. We conditionally reversed and remanded for the trial court to conduct an in camera review of the records of Officers Garcia, Harrison, and Weiss. We also directed the trial court to afford Padilla an opportunity to request a hearing on his ability to pay. We otherwise affirmed. (Padilla I, supra, B285989.)
D. Proceedings on Remand Following Padilla I
On October 10, 2019 the trial court conducted a Pitchess hearing in camera. Following its in camera review, the court entered a minute order stating "[n]o relevant information was contained." The court reinstated the judgment, including fines and fees. The court did not hold a hearing on Padilla's ability to pay the fines and court assessments. (Padilla II, supra, B302320.)
E. Padilla II
Padilla again appealed, and we reviewed the sealed transcript of the trial court's October 10, 2019 in camera review. We concluded the trial court was required to disclose to Padilla information relating to two complaints we identified as complaints 1 and 2. In addition, we ordered the trial court to conduct a further in camera review of the personnel records of Officers Garcia, Harrison, and Weiss because it had failed to inquire of the custodian whether he brought all relevant records to court. We directed the court to disclose information concerning complaints 1 and 2, as well as any other complaints or documents the court determined were discoverable. Finally, we held the court had to afford Padilla an opportunity to demonstrate prejudice and to order a new trial if it found there was a reasonable probability the outcome would have been different had the information been previously disclosed. (Padilla II, supra, B302320.)
F. Proceedings on Remand Following Padilla II
On November 12, 2020 the trial court conducted another Pitchess hearing in camera. According to the minute order, "Discoverable information is found. Discovery is to be turned over to the defense by 11/20/20." Specifically, the court ordered complaints 1 and 2 to be disclosed, but it did not find any other discoverable information.
G. Padilla's Motion for New Trial
On August 6, 2021 Padilla filed a motion for new trial in which he argued the testimony of two Pitchess witnesses would have revealed Officer Weiss' character for dishonesty, and it was reasonably probable that at least one juror would have voted for an acquittal based on the testimony. Padilla argued "the credibility of Officer Weiss and his fellow officers was of paramount importance to the People securing their verdict as video support for their testimony was suspiciously sparse" and "the group of shooting officers' version of events morphed over time." Padilla submitted the declaration of a criminal defense attorney stating he would testify Officer Weiss fabricated a confession from the attorney's former client about passing bad checks and falsely testified at trial. Padilla submitted a second declaration from an individual who had been arrested by Officer Weiss and others in 2011, claiming misconduct by Officer Weiss in the course of the arrest.
The People opposed the motion on the basis the testimony of the two Pitchess witnesses would not have undermined the physical and scientific evidence or the testimony from the other trial witnesses, including 10 police officers and four defense witnesses. Further, among other arguments, there was no evidence to support the claims made by the Pitchess witnesses as to Officer Weiss's conduct.
After a hearing on September 22, 2021, the trial court denied the motion, finding there was no reasonable probability the Pitchess discovery would have resulted in a different outcome. The trial court then orally resentenced Padilla to five years in prison (after striking the one-year prison prior allegation), and it suspended or deleted the fines and fees previously imposed.Padilla again appealed.
We assume the trial court suspended the restitution fine and probation revocation fine and deleted the assessments, but that is not clear from the record. The court should clarify this in the amended abstract of judgment.
DISCUSSION
A. The Trial Court Complied with Its Obligations Under Pitchess
"'When a defendant shows good cause for the discovery of information in an officer's personnel records, the trial court must examine the records in camera to determine if any information should be disclosed.'" (People v. Rivera (2019) 7 Cal.5th 306, 338 (Rivera); accord, People v. Anderson (2018) 5 Cal.5th 372, 391.) "'The court may not disclose complaints over five years old, conclusions drawn during an investigation, or facts so remote or irrelevant that their disclosure would be of little benefit.'" (Rivera, at p. 338; accord, People v. Winbush (2017) 2 Cal.5th 402, 424; see Evid. Code, § 1045, subd. (b).) "'Pitchess rulings are reviewed for an abuse of discretion.'" (Rivera, at p. 338; accord, Anderson, at p. 391.)
Padilla requests we review the sealed portion of the record, which includes the transcript of the in camera hearing held on November 12, 2020, "in order to ensure that the trial court complied with the requirements for such a hearing." The People do not object to our review. Padilla's request for an independent review of the sealed record is proper. (People v. Anderson, supra, 5 Cal.5th at p. 391 ["Defendant properly asks us to review the sealed record of the in camera hearing to determine whether the court erroneously failed to provide discovery that he should have received."]; Rivera, supra, 7 Cal.5th at pp. 338-339 [Supreme Court reviewed sealed transcript of in camera hearings and sealed exhibits].)
We have reviewed the sealed transcript of the trial court's in camera review. The custodian of records was placed under oath, testified all potentially relevant documents were brought to the hearing, and provided (and described) the documents in the officers' personnel files. Thus, the court complied with the procedural requirements. (See Rivera, supra, 7 Cal.5th at p. 339; People v. Mooc (2001) 26 Cal.4th 1216, 1226.) Based on our review, we conclude the trial court properly ordered disclosure of documents relating to complaints 1 and 2 and did not abuse its discretion in finding none of the other complaints was relevant to the underlying case. (See Evid. Code, § 1045, subd. (a).)
B. The Abstract of Judgment Must Be Corrected To Accurately Reflect the Oral Pronouncement of Judgment
As discussed, the 2017 abstract of judgment states Padilla was sentenced to six years in state prison, including five years for the aggravated assaults, plus one year for the prior prison term enhancement under section 667.5, subdivision (b), and he was ordered to pay a $300 restitution fine, $120 in court operations assessments, and $90 in conviction assessments. However, after denying Padilla's motion for new trial, on September 22, 2021 the trial court orally resentenced Padilla without modifying the abstract of judgment. The court stated on the record, "I'm just going to nunc pro tunc the 10/26/17 [motion] to strike the prior, the one year prior," and further, Padilla "absolutely" has served five years. The minute order was consistent with the oral ruling.
Padilla contends, the People concede, and we agree the trial court must correct the abstract of judgment so that it conforms with the oral pronouncement of the trial court on September 22, 2021. (See People v. Leon (2020) 8 Cal.5th 831, 855 ["Any discrepancy between the judgment as orally pronounced and as recorded in the clerk's minutes or abstract of judgment is presumed to be the result of clerical error."]; People v. Mitchell (2001) 26 Cal.4th 181, 185 [an appellate court may order "correction of abstracts of judgment that [do] not accurately reflect the oral judgments of sentencing courts"]; People v. Whalum (2020) 50 Cal.App.5th 1, 15 ["Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls."].)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment consistent with the court's oral pronouncement of judgment. The clerk of the superior court is ordered to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: PERLUSS, P. J. SEGAL, J.