Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS051336A
Duffy, J.
Defendant Jermaine Pina, an inmate at Salinas Valley State Prison serving a term for murder, was charged with being a prisoner in possession of a deadly weapon in violation of Penal Code section 4502, subdivision (a). It was also alleged that he had suffered five prior strike convictions within the meaning of section 1170.12. He made a Pitchess motion seeking to discover a broad array of documents in the personnel files of the two correctional officers who had been involved in the discovery of weapons in his cell. The trial court narrowed the scope of documents to be produced to those relating to the officers’ veracity or dishonesty. The custodians of record charged with reviewing the two respective officers’ personnel files for responsive documents produced no documents from the files, each independently having concluded that none existed that were responsive. Based on the absence of responsive documents as represented by the custodians, the trial court concluded that no such documents existed and denied the Pitchess motion.
Further unspecified references are to the Penal Code.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
After later admitting the prior strikes, defendant agreed to submit the substantive charge to the trial court based on its review of the preliminary hearing transcript, which contained the testimony of one of the two correctional officers about the discovery of two shanks in defendant’s cell during a random search. There had been only minimal cross-examination of the officer and defendant neither called witnesses nor argued in his own defense at the preliminary hearing. Both sides agree on appeal that this trial procedure amounted to a “slow plea” that was tantamount to a plea of guilty. Defendant was ultimately convicted. On the People’s motion, the court struck four of the five prior strikes in the interests of justice. Defendant was sentenced to a term of four years, to run consecutive to the term he was already serving. The court also imposed a restitution fund fine of $800 under section 1202.4, subdivision (b), and a parole revocation fine in like amount under section 1202.45, which was suspended.
One example of a slow plea is a submission on the preliminary hearing transcript when guilt is apparent on the face of the transcript and a conviction is a foregone conclusion if no defense is offered. (People v. Wright (1987) 43 Cal.3d 487, 496 (Wright); Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602 (Bunnell).)
On appeal, defendant contends that reversal is required because he did not personally waive a jury trial in connection with the substantive weapons charge, he likewise was not advised of nor waived the right not to incriminate himself, and he was not advised of the consequences of his slow plea. He further contends that the court erred in conducting the Pitchess procedure in that no record was made of what documents the custodians of record had reviewed in the correctional officers’ respective personnel files before concluding that none were responsive. Defendant finally contends that the restitution fund fine should not have been imposed, or should have been stayed, until he completes his prior term and then begins to serve his consecutive four-year sentence for the instant offense.
While we reject defendant’s first and third claims, we nevertheless conclude that his claim concerning the Pitchess procedure employed by the trial court has some merit. Accordingly, we conditionally reverse the judgment and remand for a new Pitchess hearing.
STATEMENT OF THE CASE
We take the facts from the transcript of the preliminary hearing and the Incident Report attached to defendant’s Pitchess motion.
On October 19, 2004, correctional officers at Salinas Valley State Prison where defendant is an inmate were conducting random cell searches. Defendant was in his cell, of which he was the only occupant, and he was removed and physically searched in another location. While defendant was out of his cell, two correctional officers searched it. One of them found two prisoner-made weapons—shanks—in the bottom of a meal bag that was sitting on a lower bunk. One weapon was about seven inches long and was “made out of a flat metal stock and had . . . white surgical tape wrapped around it as a handle.” The other was about six and one-half inches long and had been fashioned from a plastic toothbrush, which had been sharpened to a point at one end and also wrapped with surgical tape for a handle at the other end. No other contraband was found.
II. Procedural Background
Defendant was charged in a single count with possession of a deadly weapon by a prisoner in violation of section 4502, subdivision (a). The complaint also alleged that he had five prior strike convictions within the meaning of section 1170.12, subdivision (c)(2)(A), including for murder, attempted murder, and robbery.
At the preliminary hearing, the People called as a witness the correctional officer who had found the shanks in defendant’s cell. The officer testified to the above facts, with limited cross-examination. The defendant called no witnesses and offered no argument in his defense. At the end of the hearing, the court bound the defendant over for trial.
Before trial, defendant filed a Pitchess motion that sought discovery of misconduct or of complaints or disciplinary action against the two correctional officers who had searched his cell. The People opposed the motion, partly on the basis that the categories of documents sought were overbroad and that defendant had only established a basis for discovery of documents relating to the officers’ veracity. Present at the hearing on the motion were both counsel, the acting personnel supervisor for one of the officers, and the acting institutional personnel officer for the other. After having discussed the matter with both counsel off the record in chambers, the court went on the record and said that it was of the view that a sufficient showing had been made only for the production of records pertaining to “any false statements or affidavits made by the officer[s], any episodes of deceptiveness or falsehood, or of planting of weapons, or complaints of that sort of conduct, . . .” The court then orally confirmed with counsel that this conclusion was also the consensus of the parties.
Then, without the personnel officers having been placed under oath, the prosecutor separately asked each of them if they had reviewed the defendant’s motion and noted the categories of information sought, if they had had access to all the personnel records of the respective correctional officers, and whether any responsive documents were found among the respective personnel files. The answer to the first two questions in both cases was “yes,” and to the last question in both cases was “no.” Defense counsel also asked each of the personnel officers whether any documents relating to the correctional officers’ veracity or truthfulness had been searched for, to which the answers of each were “yes,” and whether any such documents had been found, to which the answers of each were “no.” No one asked the personnel officers what records they each had reviewed in the respective files in order to conclude that no responsive documents existed. The court then determined that “while that sort of information would be discoverable, . . . there isn’t any in the files [of] either [correctional officer]” and denied the motion.
The case was set for jury trial. At trial, there appears to have been some off-the-record discussions among the court, counsel, and defendant about how the case would proceed. Then, on the record, the court confirmed that the matter would go forward first with “an admission by Mr. Pina of prior convictions he has, which would be considered strikes; and then the matter would be submitted in a court trial, for which he will give up his right to a jury trial, as [will] the People, and Mr. Pina will give up his right as [will] the People to confront those accusing him, and the matter will be submitted on the transcript of the preliminary hearing for determination.” (Italics added.) The court continued, “And then depending on the outcome of that, which has been discussed [¶] . . .[¶] . . . we would then proceed to the next step.” Defense counsel repeatedly confirmed the court’s understanding. The court then asked defendant whether its description of how the proceedings were to be conducted, which had included the court’s reference about the waiver of a jury trial on the substantive charge, was accurate, to which defendant replied, “Yes, sir.” The court also asked defendant whether proceeding in that manner had been discussed with him, to which defendant responded, “Yes, sir, it has.” The court then asked defendant if this was “okay” with him, to which defendant again replied, “Yes, sir.”
Then, the following dialogue occurred:
“THE COURT: . . . By this process, the first thing is that you’re indicating you’re going to admit those prior convictions which are strikes, and I believe there are five of them. Is that your understanding?
“THE DEFENDANT: Yes, sir.
“THE COURT: By doing that you give up the right to a trial—jury trial, on those issues, you give up a jury trial?
“THE DEFENDANT: Yes, sir.
“THE COURT: The right to confront those accusing you, the right to remain silent. You understand those rights?
“THE DEFENDANT: Yes, sir.
“THE COURT: You want to give those up on those prior convictions?
“THE DEFENDANT: Yes, sir.
“THE COURT: And you’re acknowledging the fact those prior convictions are true; is that correct?
“THE DEFENDANT: Yes.
“THE COURT: And as far as the underlying offense, that was going to be submitted on some documents that I already have. Who has that?
“[Defense counsel]: The transcript of the preliminary hearing, Your Honor. She has the bound copy.
“THE COURT: Okay. Let’s mark it as People’s first in order. [¶] . . . [¶] And for me to review this, you have to agree to it. Do you, Mr. Pina?
“THE DEFENDANT: Yes.
“THE COURT: People agree?
“[The prosecutor]: Yes, Your Honor, the People waive their right to a trial by jury.
“THE COURT: Defense Counsel?
“[Defense counsel]: Yes, Your Honor, we also waive that right.
“THE COURT: Do you also give up your right to confront or have your attorney confront those that are accusing you? Because [there are] not going to be any bodies in court for me to see; it’s all going to be on the printed word.
“THE DEFENDANT: Yes, sir.
“THE COURT: Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Is that what you want to do?
The clerk’s minutes of the proceeding indicate that “[d]efendant waives trial by jury.”
The court then reviewed the preliminary hearing transcript and the matter was submitted without argument. Based on its review, the court was “convinced beyond a reasonable doubt of the truth of the allegations as stated in the complaint.” After that pronouncement, the People moved under section 1385 to dismiss all but one of defendant’s prior strike convictions, and that motion was granted. The prosecutor also offered that the appropriate sentence would be the lower term of two years, doubled for the prior strike, plus imposition of an $800 restitution fund fine under section 1202.4, subdivision (b), and a suspended parole revocation fine in like amount under section 1202.45. Defendant and his counsel agreed to immediate sentencing and appeared to acquiesce in that disposition, except that defendant requested that he not be ordered to pay restitution fines until such time in the future when he would begin to serve the consecutive sentence. The court stated that it did not know if it had the authority to delay imposition of the restitution fines and imposed the four-year consecutive sentence and restitution fines as discussed, leaving defendant to his legal challenges on the issue. The later abstract of judgment states that defendant’s conviction was by “plea” and that the restitution fine is payable “forthwith.”
Defendant’s notice of appeal from the judgment states two claims of error, which are that the court “erred in the procedure used in determining if any documents existed responsive to a Pitchess motion which had been granted” and it “erred in ruling that it was without jurisdiction to order that CDCR not begin taking money for the restitution fine that was imposed in the . . . case until that term [begins] to run, as it will run consecutive to the term currently being served.” The notice raised no claims of error with respect to waiver of the rights to jury trial or not to incriminate oneself but purportedly reserved the right to assert additional contentions.
No certificate of probable cause is required under section 1237.5 to challenge a judgment of conviction by slow plea. (People v. Cook (1971) 19 Cal.App.3d 405, 408.)
ANALYSIS
I. The Record Shows That Defendant’s Slow Plea Was Voluntarily and Intelligently Submitted
Both parties agree—and the record supports—that defendant’s submission to the trial court of his guilt based on the court’s review of the preliminary hearing transcript was tantamount to a guilty plea. As pertinent here, the consequence of this is that the trial court was required to (1) advise defendant of his Boykin-Tahl rights, that is, his constitutional rights to a jury trial, silence, and confrontation; and (2) secure his express waivers of those rights. (Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl); Bunnell, supra, 13 Cal.3d at p. 605.) In addition, the record “shall also demonstrate that [the defendant] understands the nature of the charges. . . . In cases in which there is to be a submission without a reservation by the defendant of the right to present evidence in his own defense he shall be advised of that right and an express waiver thereof taken. If a defendant does not reserve the right to present additional evidence and does not advise the court that he will contest his guilt in argument to the court, the defendant shall be advised of the probability that the submission will result in a conviction of the offense or offenses charged. In all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute, . . .” (Bunnell, supra, at p. 605.)
Prior to 1992, our Supreme Court “treated the failure to comply with a defendant’s Boykin-Tahl rights as requiring automatic reversal of the defendant’s conviction.” (People v. Allen (1999) 21 Cal.4th 424, 437 (Allen).) But in People v. Howard (1992) 1 Cal.4th 1132, the court “reevaluated the rule of automatic reversal.” (Allen, supra, at p. 437.) The Howard court concluded “that the Boykin-Tahl rule merely requires that ‘[t]he record . . . affirmatively demonstrate that the plea [that is, the admission of a prior conviction] was voluntary and intelligent under the totality of the circumstances.’ (Italics added.) . . . [¶] . . . [¶] After Howard, for an appellate court simply to determine the defendant had not been expressly told of his rights, nor expressly waived them was no longer sufficient. If the record failed to disclose proper advisements and waivers, the appellate court was required to determine further, based on the totality of the circumstances, whether the defendant’s admission in any event was voluntarily and intelligently made. This determination required the appellate court to examine the entire proceeding. [Citations.] As in all appeals, however, this determination was limited to the trial record.” (Allen, supra, at pp. 438-439, fn. omitted.)
Howard’s rule has been applied not only to the Boykin-Tahl advisements and waivers required before an admission of a prior conviction (as in Howard itself), but also to the advisement and waiver of constitutional rights required before a guilty plea or a submission upon a preliminary hearing transcript that is tantamount to a guilty plea, i.e., a “slow plea.” (Allen, supra, 21 Cal.4th at p. 439, fn. 4; People v. Knight (1992) 6 Cal.App.4th 1829.)
In contrast to the requirement that a defendant be advised of his Boykin-Tahl rights before entering a plea or submission, which is constitutionally compelled, Bunnell’s requirement of other advisements, including of the direct consequences of a plea, is a judicially declared rule of criminal procedure. (Bunnell, supra, 13 Cal.3d at p. 605; People v. Walker (1991) 54 Cal.3d 1013, 1022; see People v. Wright, supra, 43 Cal.3d at p. 495, disapproved on another ground in People v. Howard, supra, 1 Cal.4th at pp. 1174-1178, cert. den. sub nom. Howard v. California (1992) 506 U.S. 942.) “[A] defendant (even on direct appeal) is entitled to relief based upon a trial court’s misadvisement only if the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that the defendant would not have entered the plea of guilty had the trial court given a proper advisement.” (In re Moser (1993) 6 Cal.4th 342, 352.)
We accordingly reject defendant’s contention in reliance on People v. Ernst (1994) 8 Cal.4th 441, 444-448 (Ernst), that the absence of his explicit personal waiver of a jury trial and the right not to incriminate himself on this record is reversible per se. We instead determine whether, based on the totality of the circumstances and in view of the whole trial record, defendant submitted the issue of his guilt by slow plea intelligently and voluntarily. (Allen, supra, 21 Cal.4th at pp. 438-439.) While Ernst does indeed require that a defendant personally waive the right to a jury trial when agreeing to a trial by court based on article I, section 16 of the California Constitution, we have concluded and defendant agrees that here, his submission was not a trial per se but was instead tantamount to a plea of guilty. As to guilty pleas, Ernst held that the constitutional provision requiring defendant’s personal, express waiver of a jury trial in a criminal case does not apply. (Ernst, supra, 8 Cal.4th at pp. 447-448.)
And with respect to the direct consequences of defendant’s submission based on the preliminary hearing transcript as to which the trial court failed to advise that defendant would likely be found guilty, we determine whether defendant was prejudiced by the lack of advisement. In other words, would he have elected to proceed to a full-blown trial instead of having submitted his guilt on the preliminary hearing transcript had he been so advised?
We have closely examined the trial court’s colloquy with defendant and his counsel and find that he was sufficiently advised of, and sufficiently waived, his right to a jury trial in the submission of his slow plea on the substantive charge. While the court’s explanation of this right in this context could have been more complete, and while the court could have secured defendant’s waiver of this right more specifically and clearly, we nevertheless conclude that the court’s advisements were adequate to apprise defendant that he had a right to have a jury and that he understood that right and voluntarily waived it.
The court specifically said in reference to the manner in which the case would proceed by submission of the preliminary transcript that defendant would “give up his right to a jury trial.” This relinquishment was then confirmed by defendant’s counsel. When defendant was asked whether proceeding in this way had been discussed with him, he responded affirmatively. When the court then asked defendant if this procedure was “okay” with him, defendant replied, “Yes, sir.” Granted, the court’s specific reference to the jury trial right and defendant’s waiver were separated by some intervening colloquy. But the record still makes clear that this oral exchange between the court and defendant was specifically in reference to the jury trial right in connection with the substantive charge. And defendant’s waiver of his right to a jury trial and to remain silent in connection with the prior strikes immediately followed, indicating that he was generally aware of these rights. Then, following the People’s express jury trial waiver in connection with the substantive charge and defendant’s counsel’s repeated affirmance of the same, the court asked defendant if he waived the right to confront those accusing him because there would not be “any bodies in court for [the court] to see; it’s all going to be on the printed word.” Defendant confirmed that he understood that and wanted to go forward.
From defendant’s past experience with criminal justice proceedings, we are also entitled to presume some familiarity with his constitutional rights in this setting. (People v. Mosby (2004) 33 Cal.4th 353, 365 [previous experience in the criminal justice system is relevant to a recidivist’s knowledge and sophistication regarding his legal rights].)
As to the right not to incriminate himself, it is true that the court did not expressly give an advisement with respect to the substantive charge as it is required to do. (People v. Levey (1973) 8 Cal.3d 648, 652.) But, as the record makes clear, in close proximity the court did so advise with respect to defendant’s admission of the prior strikes. And defendant, one familiar with criminal proceedings, acknowledged that he had discussed the slow plea procedure with counsel and affirmatively wished to go forward with it.
In short, on this record and under the totality of the circumstances presented here, which include that at the same hearing, defendant received proper advisements with respect to his admission of the prior strikes and had the advice of counsel with whom he acknowledged discussing the slow plea procedure, we are convinced that defendant was sufficiently advised of and understood his rights to a jury trial and to remain silent, and that he voluntarily and intelligently waived these rights with respect to the substantive charge. (Allen, supra, 21 Cal.4th at pp. 438-439.)
As for the trial court’s failure to have advised defendant of the direct consequences of his slow plea, including that he would likely be convicted, we conclude that the court did indeed err. (Bunnell, supra, 13 Cal.3d at p. 605 ; People v. Wright, supra, 43 Cal.3d at p. 493.) But defendant offers no argument or evidence in the record to demonstrate prejudice, i.e., had he been so advised he would not have proceeded by slow plea, and we find none. And while it was not expressly said, the record suggests that defendant’s submission on the preliminary transcript and his admission of the prior strikes, four of which were later dismissed, was part of an agreement. As a result of the disposition and sentencing, as to which defendant raised no objection below, he avoided a consecutive three-strike sentence and received the lower term, albeit doubled for the single remaining strike. On this record, defendant has failed to show that he would have chosen to proceed to trial had he been advised of the direct consequences of his submission, specifically that he would likely be found guilty.
II. Defendant Has Not Shown Error in The Trial Court’s Imposition of Restitution Fines
Defendant contends that he should not be obligated to pay the restitution fund fine imposed in this case under section 1202.4, subdivision (b), until he completes his current unrelated sentence and begins to serve the consecutive sentence imposed in this case. He cites no authority for this contention and offers nothing in the way of analysis other than this bare assertion. Under these circumstances, we will consider the issue to have been waived. (People v. Stanley (1995) 10 Cal.4th 764, 793 [“ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived and pass it without consideration. [Citations.]’ [Citations.]”].) Even if we were to consider the issue on its merits, there is nothing in section 1202.4 that would authorize delay in the imposition of the fine, which the court “shall” impose, “unless it finds compelling and extraordinary reasons for not doing so.” (§ 1202.4, subd. (b).)
III. The Trial Court’s Pitchess Procedure was Flawed and Requires Conditional Reversal of the Judgment
The Supreme Court detailed the procedure to be followed in connection with a criminal defendant’s Pitchess motion in People v. Mooc (2001) 26 Cal.4th 1216 (Mooc). Pitchess motions involve a trial court’s “screening [of] law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant’s defense. This procedural mechanism for criminal defense discovery, which must be viewed against the larger background of the prosecution’s constitutional obligation to disclose to a defendant material exculpatory evidence so as not to infringe the defendant’s right to a fair trial [citations] is now an established part of criminal procedure in this state. [Citations.]” (Mooc, supra, at pp. 1225-1226.) In 1978 (four years after Pitchess was decided), the procedure was codified in sections 832.5, 832.7, and 832.8, and under Evidence Code sections 1043 through 1047. (Mooc, supra, at p. 1226 & fn. 3.)
As the Supreme Court explained, after the defendant files his or her Pitchess motion, “[i]f the trial court concludes the defendant has fulfilled [the statutory] prerequisites and made a showing of good cause, the custodian of records should bring to court all documents ‘potentially relevant’ to the defendant’s motion. [Citation.] The trial court ‘shall examine the information in chambers’ (Evid. Code, § 1045, subd. (b)), ‘out of the presence and hearing of all persons except the person authorized [to possess the records] and such other persons [the custodian of records] is willing to have present’ (id., § 915, subd. (b); see id., § 1045, subd. (b) [incorporating id., § 915]). 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.’ (Id., § 1045, subd. (a).)” (Mooc, supra, 26 Cal.4th at p. 1226.)
In ruling on a Pitchess motion, it is essential that the trial court make a record of the particular files, records, or documents produced by the custodian for the court’s review. (Mooc, supra, 26 Cal.4th at p. 1228.) There should be a court reporter present to document any statements by the custodian, as well as any questions by the trial court and the custodian’s responses thereto as to the records production. (Id. at p. 1229.) “The trial court should then make a record of what documents it examined before ruling on the Pitchess motion. Such a record will permit future appellate review. . . . 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 . . . 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. [Citation.]” (Id. at pp. 1229-1230, fn. omitted.)
We review the trial court’s substantive ruling on a Pitchess motion for abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
Here, the personnel files of the correctional officers were reviewed by the custodians of record for relevant evidence as narrowed by the trial court to matters relating to the officers’ veracity or dishonesty. Without taking an oath, each of the two custodians stated on the record that they had reviewed the files, that no responsive documents had been found, and therefore none were brought to the hearing. But neither the trial court nor counsel questioned the custodians about what records were present in the files or what records had been reviewed in order to reach the conclusion that no documents were responsive. The custodians did not bring the files to the hearing and the trial court conducted no independent review of them, simply deferring to the custodians’ judgment, and on that basis determining that defendant was not entitled to any discovery. Accordingly, there is no record of the potential universe of responsive documents for us to review.
The court of appeal in People v. Guevara (2007) 148 Cal.App.4th 62, 68-69 (Guevara), confronted a similar situation but there, the custodian of record had been placed under oath and there appeared in the record references to a list of documents that the police officer’s personnel file contained—two factors that bear on the adequacy of the Pitchess procedure employed. The court nevertheless conditionally reversed the judgment and remanded for a new Pitchess in camera hearing so that the trial court could assess the completeness of the custodian’s file review and establish the legitimacy of the custodian’s decision not to produce any documents. (Id. at p. 69.) “Although the custodian of records was required to submit for review only those documents that were potentially responsive to the discovery request, our Supreme Court has directed that ‘[t]he custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant’s Pitchess motion.’ [Mooc, supra, 26 Cal.4th at p. 1229.] Moreover, ‘if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court.’ (Ibid.)” (Guevara, supra, 148 Cal.App.4th at p. 68.)
The court in Guevara went on to hold that in cases in which the custodian “does not produce the entire personnel file for the court’s review, he or she must establish on the record what documents or category of documents were included in the complete personnel file. In addition, if it is not readily apparent from the nature of the documents that they are nonresponsive or irrelevant to the discovery request, the custodian must explain his or her decision to withhold them. Absent this information, the court cannot adequately assess the completeness of the custodian’s review of the personnel files, nor can it establish the legitimacy of the custodian’s decision to withhold documents contained therein. Such a procedure is necessary to satisfy the Supreme Court’s pronouncement that ‘the locus of decisionmaking’ at a Pitchess hearing ‘is to be the trial court, not the prosecution or the custodian of records.’ [Mooc, supra, 26 Cal.4th at p. 1229.] It is for the court to make not only the final evaluation but to make a record that can be reviewed on appeal.” (Guevara, supra, 148 Cal.App.4th at p. 69.)
Given these obligations of the custodian of record and the trial court in ruling on a Pitchess motion, plus the fact that defense counsel is not usually present at the in camera hearing, we reject respondent’s contention that this issue has been forfeited on appeal by the defendant’s failure to have raised it below.
We agree with Guevara’s holding and conclude that the Pitchess procedure used in this case fell short of Mooc’s requirements in several respects, constituting an abuse of discretion by the trial court. First, it does not appear that the personnel officers were placed under oath before they discussed their file review and efforts to locate responsive documents contained therein. (Mooc, supra, 26 Cal.4th at pp. 1229-1230, fn. 4.) Secondly, the custodians did not establish what documents or category of documents were included in the compete personnel files of the correctional officers. Third, the custodians did not explain their decisions not to produce any documents. (Guevara, supra, 148 Cal.App.4th at p. 69.)
Because there is no record for this court to review on appeal, we are compelled to reverse the judgment conditionally and remand for a new Pitchess hearing in which the proper procedures are followed.
DISPOSITION
The judgment is reversed conditionally. The cause is remanded to the trial court with directions to hold a new hearing on defendant’s Pitchess motion in conformance with the procedures described in this opinion. If the trial court finds there are discoverable records, they shall be produced and the court shall conduct such further proceedings as are necessary and appropriate. If the court finds there are no discoverable records, or that there is discoverable information but defendant cannot establish that he was prejudiced by the denial of discovery, the judgment shall be affirmed as of that date. (People v. Hustead (1999) 74 Cal.App.4th 410, 423; Guevara, supra, 148 Cal.App.4th at p. 68.)
WE CONCUR: Mihara, Acting P.J., McAdams, J.