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People v. Randle

California Court of Appeals, Second District, Fifth Division
Feb 4, 2011
No. B222374 (Cal. Ct. App. Feb. 4, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. KA088132, Mike Camacho, Judge.

Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.


MOSK, J.

INTRODUCTION

Defendant and appellant Kenneth T. Randle (defendant) was charged with transporting base cocaine, in violation of Health and Safety Code section 11352, subd. (a) and possessing it for sale, in violation of section 11351.5. The information also alleged that defendant had suffered a prior serious or violent felony conviction (Pen. Code, §§ 667, subs. (b)-(i), 1170.12, subs. (a)-(d)), had suffered five prior felony convictions for which he had served a prison term (Pen. Code, § 667.5, subd. (b)), and had suffered two prior narcotics possession convictions under sections 11351.5 and 11352 (§ 11370.2, subd. (a)).

All statutory references are to the Health and Safety Code unless otherwise stated.

Prior to trial, defendant filed a Pitchess motion for the discovery of personnel records for four City of Pomona Police Department officers. The trial court partially granted the motion, and ordered an in camera review of personnel records for two of the officers. After an in camera review, the trial court ruled that there were no discoverable documents responsive to the Pitchess motion.

Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

Following a jury trial, defendant was convicted on both counts. The trial court also found true the allegations that defendant had suffered a prior serious or violent felony conviction, had suffered prior felony convictions for which he had served a prison term, and had suffered two prior narcotics possession convictions.

On appeal, defendant requests that we conduct an independent review of the in camera proceedings to determine whether the trial court abused its discretion by incorrectly withholding discoverable personnel records. We conclude that the trial court did not withhold any discoverable information.

BACKGROUND

A. Prosecution’s Case

On September 10, 2009, City of Pomona Police Department Officer Iwig was on patrol when he conducted a traffic stop of a van. Defendant was in the front passenger seat of the van. An officer arrived to assist Officer Iwig, and Officer Iwig instructed defendant to exit the vehicle. As defendant unlatched his seat belt, he grabbed for his waistband. Officer Iwig grabbed defendant’s hand because Officer Iwig did not know what was in defendant’s waistband. Defendant and Officer Iwig struggled briefly.

Defendant exited the vehicle and turned his back to Officer Iwig. Officer Iwig placed defendant in a hold to conduct a pat down search to discover whether defendant had a weapon in his waistband. As Officer Iwig attempted to reach for defendant’s waistband, defendant grabbed Officer Iwig’s hand. Officer Iwig handcuffed defendant. Once handcuffed, defendant bent over so that Officer Iwig and one of the other officers could not check his waistband. The officers took defendant to the ground and searched his waistband and found a cocaine pipe. Defendant was arrested and taken to the police station. During the booking process, Officer Iwig discovered two plastic bags of rock cocaine in the waistband of defendant’s underwear. One of the plastic bags contained 14 small cocaine rocks with a total weight of 3.52 grams. The second plastic bag contained 2 larger cocaine rocks with a total weight of 3.24 grams. Defendant also had $33 in his possession. Officer Iwig was the only officer who came in contact with defendant during his arrest and booking to testify at defendant’s trial.

B. Defense Case

Defendant testified on his own behalf. Defendant denied that he possessed any rock cocaine when he was arrested. Defendant admitted, however, that he possessed a crack pipe because he intended to buy some rock cocaine. Defendant claimed that in the 24 years he had been using rock cocaine, he never had enough money to buy cocaine in the quantity Officer Iwig testified he found in defendant’s possession.

C. Pitchess Motion

Defendant filed a pretrial discovery motion pursuant to Pitchess, supra, 11 Cal.3d 531 seeking the discovery of confidential personnel information for four City of Pomona Police Department officers. Defendant’s counsel declared based upon information and belief that Officer Iwig stated in the police report that he, Officer Iwig, was assisted by Officers Ugarte and Johnson; that defendant was being uncooperative and that Officer Iwig was required to assist defendant out of the vehicle; that Officers Iwig and Johnson handcuffed defendant and pushed him to the ground to search him; and that Officers Iwig and Lee observed that defendant had possession of rock cocaine and that defendant made certain statements to Officer Iwig. Defendant’s counsel, based upon information and belief, also declared that defendant denied he was being uncooperative, had possession of the rock cocaine, or made the statements attributed to him by Officer Iwig. Defendant believed Officer Iwig falsified his police report and “planted/tampered” with the evidence. Defendant believed that Officer Iwig did not like him based upon prior contacts they had and that Officer Iwig wanted to arrest defendant for a serious crime. Defendant also believed the other officers, including Officer Johnson, would lie to protect the arrest and their reputations and the reputation of Officer Iwig. Defendant’s grounds for obtaining documents relating to the officer’s use of excessive force was his contention that he was not resisting the officers attempts to remove him from the vehicle.

At the hearing on the motion, the trial court partially granted the motion, and ordered an in camera review of personnel records for two of the officers-Officers Iwig and Johnson-concerning (1) dishonesty including but not limited to falsification of reports, and “perhaps fabrication of evidence” and planting of evidence, and (2) excessive use of force. After an in camera review, the trial court ruled that there were no relevant documents responsive to the Pitchess motion.

DISCUSSION

A. Standard of Review

We review the trial court’s ruling on the Pitchess motion for abuse of discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1286; see also People v. Hughes (2002) 27 Cal.4th 287, 330 [A trial court’s ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion].)

B. Pitchess Discovery

1. General Principles

“Evidence Code sections 1043 through 1045 codify Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305]. ‘The statutory scheme carefully balances two directly conflicting interests: the peace officer’s just claim to confidentiality, and the criminal defendant’s equally compelling interest in all information pertinent to the defense.’ (City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 53 [19 Cal.Rptr.2d 73, 850 P.2d 621].) The legislation achieves this balance primarily through a procedure of in camera review, set forth in section 1045, subdivision (b), whereby the trial court can determine whether a police officer’s personnel files contain any material relevant to the defense, with only a minimal breach in the confidentiality of that file.” (People v. Jackson (1996) 13 Cal.4th 1164, 1220.)

“To initiate discovery, the defendant must file a motion supported by affidavits showing ‘good cause for the discovery, ’ first by demonstrating the materiality of the information to the pending litigation, and second by ‘stating upon reasonable belief’ that the police agency has the records or information at issue. ([Evid. Code, ] § 1043, subd. (b)(3).) This two-part showing of good cause is a ‘relatively low threshold for discovery.’ [Citation.] [¶] If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance. [Citations.]” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick); People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines) [“A showing of good cause is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents.’ [Citation.]”].)

“To show good cause as required by section 1043, defense counsel’s declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges.... [¶] Counsel’s affidavit must also describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report. [¶]... [¶] [A] plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial. Such a showing ‘put[s] the court on notice’ that the specified officer misconduct ‘will likely be an issue at trial.’ [Citation.] Once that burden is met, the defendant has shown materiality under section 1043.” (Warrick, supra, 35 Cal.4th at pp. 1024-1026.)

“When a trial court concludes a defendant’s Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer’s personnel files, the custodian of the records is obligated to bring to the trial court all ‘potentially relevant’ documents to permit the trial court to examine them for itself. ([City of] Santa Cruz [v. Municipal Court (1989)] 49 Cal.3d [74, ] 84.) A law enforcement officer’s personnel record will commonly contain many documents that would, in the normal case, be irrelevant to a Pitchess motion, including those describing marital status and identifying family members, employment applications, letters of recommendation, promotion records, and health records. (See Pen. Code, § 832.8.) Documents clearly irrelevant to a defendant’s Pitchess request need not be presented to the trial court for in camera review. But if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the locus of decision making is to be the trial court, not the prosecution or the custodian of records. The 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. A court reporter should be present to document the custodian’s statements, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record. (See People v. Jackson, supra, 13 Cal.4th at p. 1221, fn. 10 [explaining that this court ‘reviewed the sealed record of the in camera proceeding’].)” (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229 (Mooc).) The court should exclude from disclosure several enumerated categories of information, including facts that are “so remote as to make disclosure of little or no practical benefit.” (Evid Code, § 1045, subd. (b)(3).)

“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. 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. (Footnote omitted.) (See People v. Samayoa (1997) 15 Cal.4th 795, 825 [64 Cal.Rptr.2d 400, 938 P.2d 2] [after ruling on the Pitchess motion, ‘[t]he magistrate ordered that all remaining materials be copied and sealed’].)” (Mooc, supra, 26 Cal.4th at pp. 1229-1230.)

2. In Camera Review

Prior to trial, the trial court conducted an in camera hearing to review certain personnel records of Officers Iwig and Johnson to determine whether they contained any discoverable information concerning allegations of their dishonesty and excessive use of force. Following that in camera review, the trial court ruled that there were no relevant documents responsive to the Pitchess motion. Citing Mooc, supra, 26 Cal.4th 1216, defendant requests that we conduct an independent review of the in camera proceedings to determine whether discoverable personnel records were incorrectly withheld. The Attorney General agrees.

In response to defendant’s Pitchess motion, the trial court ordered the City of Pomona Police Department to produce personnel records concerning complaints that Officers Iwig or Johnson engaged in dishonest conduct or excessive use of force. The custodian of records for the Department responded and produced records that the trial court reviewed in camera. That review was transcribed by the court reporter, and the transcript was sealed.

Although the sealed court reporter’s transcript of the trial court’s in camera review was included in the record on appeal, copies of the documents reviewed by the trial court and not disclosed to defendant were not included. We requested that the record be augmented to include copies of the materials reviewed by the trial court. We appointed the trial court to act as referee to conduct record correction proceedings.

Pursuant to that appointment, the trial court conducted a further in camera proceeding on November 1, 2010, and thereafter filed with this court a report and findings concerning that further proceeding. The sealed reporter’s transcript of that proceeding was also lodged with this court, along with copies of the documents reviewed by the trial court at the record correction proceeding, except for one file, which had been destroyed under the City of Pomona Counsel document destruction policy because the documents exceeded five years in age. (Gov. Code, § 34090.) At the original hearing on the Pitchess motion, defendant had failed to request that the documents reviewed in camera not be destroyed, and the trial court adequately described the contents of the file to permit appellate review. (Mooc, supra, 26 Cal.4th 1216.)

We have reviewed the report and findings of the trial court, the transcript of the record correction proceeding, and all the documents filed under seal with this court that were reviewed by the trial court at the record correction proceeding. Based on that review, as well as our prior review of the original in camera proceeding, we conclude that the trial court did not withhold any discoverable personnel records because the documents reviewed in camera related to alleged conduct which occurred more than five years before defendant’s arrest (Evid. Code, § 1045, subd. (b)(1) ), or were not relevant to the transporting and possession for sale narcotics charges, or were so remote as to be of little or no practical benefit (Evid. Code, § 1045, subd. (b)(3) ; Arcelona v. Municipal Court (1980) 113 Cal.App.3d 523, 531.)

Evidence Code section 1045, subdivision (b)(1) provides “In determining relevance, the court shall examine the information in chambers in conformity with Section 915, and shall exclude from disclosure: [¶] (1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought.”

Evidence Code section 1045, subdivision (b)(3) provides, “In determining relevance, the court shall examine the information in chambers in conformity with Section 915, and shall exclude from disclosure: [¶] (3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.”

DISPOSITION

The judgment is affirmed.

We concur: TURNER, P. J., ARMSTRONG, J.


Summaries of

People v. Randle

California Court of Appeals, Second District, Fifth Division
Feb 4, 2011
No. B222374 (Cal. Ct. App. Feb. 4, 2011)
Case details for

People v. Randle

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KENNETH T. RANDLE, Defendant and…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Feb 4, 2011

Citations

No. B222374 (Cal. Ct. App. Feb. 4, 2011)