Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV800922, Joan M. Borba, Judge.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., Angela M. Borzachillo, and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
A police officer received a “suspicious person” call, reporting that a person had been knocking on doors in an apartment complex. When he responded, he found defendant Daniel Anthony Rodriguez walking near the complex. Defendant fit the description in the report and admitted that he had been at the complex, looking for his uncle. The officer asked defendant his name. Defendant became nervous and fidgety; he gave his name as Darryl, but when asked to spell it, he replied, “Drollro.”
At that point, a second officer started to handcuff defendant. He responded by attacking both officers. As a result, a jury found defendant guilty on two counts of violently resisting an executive officer, a felony (Pen. Code, § 69) and two counts of battery against a peace officer, a misdemeanor (Pen. Code, § 243, subd. (b). One prior prison term enhancement was found true. (Pen. Code, § 667.5, subd. (b).) The trial court sentenced defendant to a total of three years eight months in prison.
All of the charges required that the officers be acting lawfully at the time of the attack. Defendant contends that the officers were detaining him unlawfully because they lacked reasonable suspicion. Alternatively, he contends that the jury was not adequately instructed on how to determine the lawfulness of a detention and that his trial counsel rendered ineffective assistance by failing to request adequate instructions. Finally, he contends that his trial counsel also rendered ineffective assistance by failing to file a Pitchess motion.
A Pitchess motion is a motion for discovery of a peace officer’s confidential personnel records. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.)
We find no prejudicial error. Accordingly, we will affirm.
I
FACTUAL BACKGROUND
On Sunday, March 30, 2008, around 2:50 p.m., Officer Robert Jones was dispatched to an apartment complex in Ontario. The call reported a “[s]uspicious person knocking on doors at [the] apartment complex.” The person was described as a Hispanic male in his 20’s, wearing a white T shirt and baggy blue Levi’s jeans.
Officer Jones noticed defendant walking in a parking lot about half a block away from the apartment complex. Defendant met the description that Officer Jones had been given.
Office Jones parked nearby. Defendant stopped and turned to face him. Officer Jones walked up to defendant and asked him what he had been doing at the apartment complex. Defendant said he was looking for his uncle, David Garcia. With defendant’s consent, Officer Jones patted him down for weapons but found none. He could feel that defendant was not carrying a wallet. He asked defendant if he had any identification. Defendant said that he did, but he had left his wallet home.
Officer Jones told defendant to sit down on the curb. Defendant complied. Officer Jones testified that, at this point, what had begun as a consensual encounter became a detention. He explained, “I wanted to find out who he was. If it turned out... a crime... did happen at the apartment complex[], we’d at least have a person’s name and address....”
Officer Jones asked defendant his name. Defendant started acting “[n]ervous, fidgeting, looking around.” He gave his name as “Darryl Cubias.” Officer Jones asked him to spell his first name. Defendant hesitated, then asked, “Don’t you know how to spell it?” Officer Jones said no. Defendant then spelled, “Drollro.”
Officer Jones drew his taser, activated it, and aimed it at defendant. At trial, he explained that, in his experience, when someone lied to him about their name, they had done something criminal. He also explained that “when someone starts fidgeting, looking around, they are getting ready to either attack or run from you.”
Officer Dave Reed arrived. He started to handcuff defendant. He explained, “[W]hen I saw Officer Jones holding [defendant] at taser, I believed he already felt his safety was in jeopardy....”
Defendant “[j]umped up and attacked Officer Reed.” A knock-down, drag-out fight with both officers ensued. After Officer Jones tasered defendant, Officer Reed managed to handcuff him. The officers sustained bruises, soreness, scratches, and scrapes.
When defendant was booked, he admitted that he had been trying to get away from the officers.
II
THE SUFFICIENCY OF THE EVIDENCE
THAT THE OFFICERS WERE ENGAGED IN DUTY
Both resisting an executive officer and battery on a peace officer have an “engaged in duty” element. Resisting an executive officer, under Penal Code section 69, requires that the defendant “resists... such officer, in the performance of his duty....” (See also In re Manuel G. (1997) 16 Cal.4th 805, 814.) Likewise, Penal Code section 243, subdivision (b) requires that the battery be “committed against the person of a peace officer... engaged in the performance of his or her duties....”
“The long-standing rule in California and other jurisdictions is that a defendant cannot be convicted of an offense against a peace officer ‘“engaged in... the performance of... [his or her] duties”’ unless the officer was acting lawfully at the time the offense against the officer was committed. [Citations.] ‘The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in “duties,” for purposes of an offense defined in such terms, if the officer’s conduct is unlawful.... [¶]... [T]he lawfulness of the victim’s conduct forms part of the corpus delicti of the offense.’ [Citation.]” (In re Manuel G., supra, 16 Cal.4th at p. 815.)
“A peace officer is not ‘engaged in the performance of his or her duties’ within the meaning of these statutes if he arrests a person unlawfully.... [Citations.]” (People v. Delahoussaye (1989) 213 Cal.App.3d 1, 7.) While there is no right to use force to resist an arrest, regardless of whether it is legal or illegal (People v. Curtis (1969) 70 Cal.2d 347, 351, disapproved on other grounds in People v. Gonzalez (1990) 51 Cal.3d 1179, 1222; Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 326-333), forcible resistance to a lawful arrest is punished more severely than forcible resistance to an unlawful arrest. (Compare Pen. Code, § 243, subd (a) with Id., subds. (b), (c); see generally Curtis, at pp. 355-356; People v. Henderson (1976) 58 Cal.App.3d 349, 356.)
We turn, then, to whether the officers arrested or detained defendant, and if so, whether they did so lawfully.
Ordinarily, in reviewing the sufficiency of the evidence, we apply the substantial evidence standard of review. The application of the Fourth Amendment to the historical facts, however, is a question of law, which we review independently. (Ornelas v. United States (1996) 517 U.S. 690, 696-699 [116 S.Ct. 1657, 134 L.Ed.2d 911]; People v. Zamudio (2008) 43 Cal.4th 327, 342.) Moreover, here the relevant historical facts were undisputed. “‘Where the facts bearing on the legality of a challenged detention are undisputed, an appellate court is confronted with a question of law....’ [Citation.]” (People v. Pitts (2004) 117 Cal.App.4th 881, 884-885.)
The only discrepancy concerns what Officer Jones said to Officer Reed before the latter tried to handcuff defendant. Officer Jones testified, “I told Officer Reed that I feel the guy gave me a false name.” Officer Reed, however, did not recall speaking with Officer Jones. As will be seen, this discrepancy is immaterial to our analysis.
“‘“For purposes of Fourth Amendment analysis, there are basically three different categories or levels of police ‘contacts’ or ‘interactions’ with individuals, ranging from the least to the most intrusive. First, there are... ‘consensual encounters’..., which are those police-individual interactions which result in no restraint of an individual’s liberty whatsoever — i.e., no ‘seizure,’ however minimal — and which may properly be initiated by police officers even if they lack any ‘objective justification.’... Second, there are what are commonly termed ‘detentions,’ seizures of an individual which are strictly limited in duration, scope and purpose, and which may be undertaken by the police ‘if there is an articulable suspicion that a person has committed or is about to commit a crime.’... Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention, seizures which include formal arrests and restraints on an individual’s liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime.”’ [Citation.]” (People v. Hughes (2002) 27 Cal.4th 287, 327-328.)
In this case, Officer Jones testified that a detention began when he asked defendant to sit on the curb. His legal opinion on this point is not binding, either on the jury or on us. (See Downer v. Bramet (1984) 152 Cal.App.3d 837, 841-842 [expert witness’s legal conclusion is not substantial evidence].) Nevertheless, we agree with it.
The People argue that it was reasonable for Officer Jones to detain defendant once defendant misspelled “Darryl.” Thus, they implicitly presume that there was no detention up until that point. However, they provide us with no argument or authority on the question of when a detention began.
“[T]he test of detention under the Fourth Amendment is whether a reasonable person in the suspect’s position would have felt free to leave. [Citation.]” (People v. Boyer (1989) 48 Cal.3d 247, 267, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; accord, Michigan v. Chesternut (1988) 486 U.S. 567, 573 [108 S.Ct. 1975, 100 L.Ed.2d 565].) “As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer.” (In re Manuel G., supra, 16 Cal.4th at p. 821.)
Here, Officer Jones asked defendant what he had been doing at the apartment complex, and defendant provided an explanation that was not obviously false. Nevertheless, Officer Jones patted him down (albeit with his consent) and asked him for identification. When defendant said he had no identification, Officer Jones asked him to sit down on the curb. Officer Jones testified that he phrased this in the form of a request, not an order. Nevertheless, under the totality of the circumstances, a reasonable person in defendant’s position would have understood that Officer Jones was not going to let him leave until he had completed a further investigation into defendant’s identity.
Accordingly, at that point, Officer Jones had to have reasonable suspicion that defendant had committed a crime. “[R]eviewing courts... must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing. [Citation.]... Although an officer’s reliance on a mere ‘“hunch”’ is insufficient to justify a stop, [citation], the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, [citation].” (United States v. Arvizu (2002) 534 U.S. 266, 273-274 [122 S.Ct. 744, 151 L.Ed.2d 740].)
Officer Jones knew that someone matching defendant’s description had been knocking on doors at an apartment complex. Defendant admitted that he had just been at that apartment complex, looking for his uncle; this confirmed that he was the person who had been knocking. Defendant argues that knocking on doors is not a crime. He points out that salesmen, political canvassers, representatives of charitable groups seeking donations, Girl Scouts selling cookies, and Jehovah’s Witnesses and Mormons proselytizing for their faiths all go around knocking on doors for perfectly innocent reasons. Defendant however, did not claim to be any of those people.
Presumably because defendant corroborated the report himself, he does not contend that the report was in any way unreliable or insufficiently corroborated.
Criminals “casing the joint” — would-be burglars looking for a residence to burgle — are also known to knock on doors. Moreover, the very act of knocking on a door, with the intent to commit burglary, can constitute an attempted burglary. (People v. Prince (2007) 40 Cal.4th 1179, 1257.) Knocking inferably goes beyond mere preparation because, if no one answers, it will result immediately in a completed burglary. (See ibid.)
Of course, defendant claimed that he had been looking for his uncle. This might explain knocking on one door, but it did not adequately explain knocking on multiple doors. We do not mean to say that there could have been no innocent explanation. For example, defendant might not have known in which apartment his uncle lived. Most apartment buildings, however, have tenant directories; also, it is unlikely that defendant would know the address of his uncle’s apartment complex, yet not know the number of his apartment. Thus, defendant’s reported conduct was more consistent with that of a burglar than that of a nephew. “... ‘The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal....’” (People v. Souza (1994) 9 Cal.4th 224, 233, original brackets.)
There is an interesting question lurking in this case as to whether a detention that is lawful under federal law may nevertheless be unlawful under pre-Proposition 8 California law. At one time, the California Supreme Court held that reasonable suspicion had to meet a subjective standard as well as an objective standard: The officer “must... subjectively entertain... a [reasonable] suspicion....” (In re Tony C. (1978) 21 Cal.3d 888, 893; see also Id. at 893, fn. 2.) In 1982, however, Proposition 8 was enacted. As relevant here, it provides: “[R]elevant evidence shall not be excluded in any criminal proceeding....” (Cal. Const., art. I, § 28, subd. (f), par. (2), formerly art. I, § 28, subd. (d).) This has been construed to “forbid[]... the exclusion of evidence at trial as a remedy for an unreasonable search and seizure unless that remedy is required by the federal Constitution....” (In re Tyrell J. (1994) 8 Cal.4th 68, 76, overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 139; accord, In re Lance W. (1985) 37 Cal.3d 873, 884-890.)
“Under federal law, a subjective suspicion is not required. The reasonable suspicion necessary to justify a detention is measured solely by an objective standard. [Citations.]” (People v. Lloyd (1992) 4 Cal.App.4th 724, 733, and cases cited.) Accordingly, under Proposition 8, the officer’s subjective state of mind is now irrelevant, at least for purposes of the exclusionary rule.
Here, however, we are not concerned with the exclusionary rule. Rather, we are concerned with whether the officers were acting lawfully. “What would have been an unlawful search or seizure in this state before the passage of that initiative would be unlawful today, and this is so even if it would pass muster under the federal Constitution. What Proposition 8 does is to eliminate a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained, except to the extent that exclusion remains federally compelled.” (In re Lance W., supra, 37 Cal.3d 873, 886-887.)
The California Supreme Court has never overruled its holdings that a reasonable suspicion must be subjective as well as objective. It has sometimes stated, flatly and seemingly without qualification, that an officer’s subjective state of mind is irrelevant; still, it has always done so, at least as far as our research has revealed, in the context of a motion to suppress. (E.g., People v. Carrington (2009) 47 Cal.4th 145, 168; People v. Zamudio, supra, 43 Cal.4th at p. 341.) We can only conclude that, for purposes of a crime with an “engaged in duty” element, pre-Proposition 8 cases applying the California Constitution remain good law. Accordingly, we must also consider whether there is evidence that Officer Jones subjectively had reasonable suspicion.
We conclude, however, that there is such evidence. Officer Jones felt it was sufficiently likely that a crime had taken place at the apartment, and that defendant was involved in it, that he was determined to ascertain defendant’s identity. He testified, “I had an obligation to find out who he is.” Admittedly, on cross-examination, he did concede that he “knew of no crime being committed” and he “had no knowledge that [defendant] had committed any crime[.]” (Italics added.) Knowledge, however, is not the same thing as reasonable suspicion.
Thus, Officer Jones had sufficient reasonable suspicion, both objectively and subjectively, to support his detention of defendant. Defendant does not contend that the detention was unduly prolonged. He also does not contend that it escalated into an arrest, either when Officer Jones drew his taser or when Officer Reed started to handcuff him. We note — if only out of an excess of caution — that “stopping a suspect at gunpoint, handcuffing him, and making him sit on the ground for a short period... do not convert a detention into an arrest. [Citations.]” (People v. Celis (2004) 33 Cal.4th 667, 675.)
We also note that, during the detention, defendant turned out to be unable to spell his supposed first name. This constituted probable cause to believe that he had just committed the crime of providing a false identity to a peace officer. (Pen. Code, § 148.9.) Thus, even assuming the officers thereafter arrested defendant, they did so on probable cause.
Under Penal Code section 148.9, it is a crime to identify oneself falsely to a peace officer while under “lawful detention or arrest....” (Pen. Code, § 148.9, subds. (a), (b).) Defendant therefore argues that it is not a crime to identify oneself falsely to a peace officer during a consensual encounter. We agree that this is not a crime under Penal Code section 148.9. However, it is at least arguable that it is a crime under Penal Code section 148, subdivision (a) (resisting, delaying, or obstructing an officer). (See People v. Christopher (2006) 137 Cal.App.4th 418, 431-436; People v. Quiroga (1993) 16 Cal.App.4th 961, 966-972.) Because we conclude that defendant was in fact already lawfully detained when he falsely identified himself, we need not resolve this issue.
It follows that, when defendant chose to attack the officers, he was lawfully detained, and they were engaged in the lawful performance of their duties.
III
INSTRUCTION ON DETENTION
Defendant also contends that the trial court failed to instruct adequately on the legal principles governing the existence and the lawfulness of a detention.
A. Additional Factual and Procedural Background.
The jury was instructed that, for purposes of all four counts, the People had to prove that the officers were lawfully performing their duties. (Judicial Council of California Criminal Jury Instructions (CALCRIM) Nos. 926 [battery on a peace officer], 2652 [resisting an executive officer].) The jury was also instructed that:
“A peace officer is not lawfully performing his duties if he is unlawfully arresting or detaining someone.... [¶]... [¶]
“A peace officer may legally detain someone if the person consents to the detention or if specific facts known or apparent to the officer lead him to suspect that the... person to be detained has been, is, or is about to be involved in activity relating to crime;
“And, two, a reasonable officer who knew the same facts would have the same suspicion.
“Any other detention is unlawful.
“In deciding whether the detention was lawful, consider evidence of the officer’s training and experience and all the circumstances known by the officer when he detained the person.” (CALCRIM No. 2670.)
B. Analysis.
Defendant contends that CALCRIM No. 2670, as given in this case, was erroneous, for three reasons.
First, defendant argues that the instruction failed to inform the jury that it had to determine whether a detention occurred and, if so, when it began. We disagree. It is not entirely true that the jury did have to determine when the detention began; for example, if it determined that the officers were using excessive force, it could have concluded that they were acting unlawfully, even aside from any detention. In any event, the instruction stated that the officers had to be lawfully performing their duties; it also stated that they were not lawfully performing their duties if they were unlawfully detaining someone. This adequately instructed the jury regarding the relevance of a detention.
Second, defendant argues that the instruction erroneously failed to define a detention. Once again, we disagree. “‘A court has no sua sponte duty to define terms that are commonly understood by those familiar with the English language, but it does have a duty to define terms that have a technical meaning peculiar to the law.’ [Citation.]” (People v. Hoyos (2007) 41 Cal.4th 872, 915.) “‘“A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning.” [Citations.]’ [Citation.]” (People v. Cross (2008) 45 Cal.4th 58, 68.) “Detain” is commonly understood to mean “[t]o keep from proceeding or going on; to keep waiting; to stop.” (Oxford English Dict. (2d ed. 1989) <http://dictionary.oed.com/cgi/entry/50062257>, as of Nov. 6, 2009, at def. 4.) Indeed, the Oxford English Dictionary comments that this is “[t]he ordinary current sense.” (Ibid.) This is not materially different from its legal meaning, which is to cause a reasonable person to feel that he or she is not free to leave. (See part II, ante.)
Third, defendant argues that the instruction was “insufficient to provide the jury with the necessary understanding and guidance to apply the formula in an effective and intelligent manner.” Defense counsel, however, forfeited this contention by failing to request additional instructions. “‘“Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”’ [Citations.]” (People v. Catlin (2001) 26 Cal.4th 81, 149.)
The principles that defendant now claims were omitted were, in fact, either stated or at least implicit in CALCRIM No. 2670. For example, defendant claims that the jury should have been instructed that “the officer must subjectively entertain th[e] suspicion [and] it must be objectively reasonable for him to do so....” CALCRIM No. 2670, however, provided that a lawful detention requires that “specific facts known or apparent to the officer lead him to suspect that the... person to be detained has been, is, or is about to be involved in activity relating to crime; [¶] [a]nd, two, a reasonable officer who knew the same facts would have the same suspicion.” (Italics added.) Thus, it effectively made the same point.
Likewise, defendant claims that the jury should have been instructed that “the lack of a subjective suspicion may render a detention unlawful.” This, however, was only a negative way of phrasing the requirement that specific facts must “lead [the officer] to suspect” the detainee of crime.
Defendant also argues that his counsel’s failure to request amplifying or clarifying instructions constituted ineffective assistance. “‘“In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶]... under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.]... If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.]”’ [Citation.]” (People v. Salcido (2008) 44 Cal.4th 93, 170.)
Here, as we have already held, even if defense counsel had asked the trial court to instruct on the definition of “detention,” it would not have been required to do so. Moreover, even if he had requested other clarifying or amplifying language, as long as it was already embraced within CALCRIM No. 2670, the trial court would not have been required to give it. (See People v. Tafoya (2007) 42 Cal.4th 147, 183.) And even if such instructions had been given, it is not reasonably probable that the jury’s verdict would have been any more favorable to defendant. (See People v. Carter (2003) 30 Cal.4th 1166, 1226 [“[B]ecause the standard instructions actually given fully informed the jury of the principles governing its... determination, it is not reasonably probable that the giving of instructions of the sort defendant contends counsel should have requested would have led to a more favorable outcome.”].)
Finally, as we held in part II, ante, defendant was detained, as a matter of law, when Officer Jones asked him to sit on the curb; moreover, as a matter of law, that detention was lawful. We may assume, for purposes of argument, that if defense counsel had requested additional instructions, he might have been able to use them to convince the jury to find that the detention occurred at some different time or on some different grounds. Even if so, “the test for ‘prejudice’ is not solely one of outcome determination. Instead, the pertinent inquiry is ‘whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.’ [Citation.]” (In re Avena (1996) 12 Cal.4th 694, 721.) The fact that defense counsel’s inaction prevented the jury from erring in defendant’s favor cannot constitute such prejudice. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 73, fn. 20.)
Accordingly, defendant has not established that defense counsel’s performance was objectively unreasonable.
IV
FAILURE TO FILE A PITCHESS MOTION
Defendant contends that his trial counsel rendered ineffective assistance by failing to bring a Pitchess motion.
“[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both ‘“materiality” to the subject matter of the pending litigation and a “reasonable belief” that the agency has the type of information sought.’ [Citation.] 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.] If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], ‘the trial court should then disclose to the defendant “such information [that] is relevant to the subject matter involved in the litigation.”’ [Citations.]” (People v. Gaines (2009) 46 Cal.4th 172, 179.)
“There is a ‘“relatively low threshold”’ for establishing the good cause necessary to compel in camera review by the court. [Citation.] Nevertheless, a defendant is not entitled to even an in camera review of police personnel files without first ‘“establish[ing] a plausible factual foundation”’ for the defense asserted. [Citation.] The defendant ‘must present... a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents.’ [Citation.]... ‘[D]epending on the circumstances of the case,’ a sufficient factual allegation in a Pitchess motion ‘may consist of a denial of the facts asserted in the police report.’ [Citation.]” (Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1048-1049.)
Defendant argues that Officer Jones and Officer Reed’s personnel records might have shown that they had a “pattern or practice of fabricating allegations, falsely arresting individuals, engaging in the use of excessive force or other misconduct....” It does not appear, however, that defense counsel could have made the necessary plausible and specific factual showing of misconduct. As we held in part II, ante, based on the facts as shown at trial, defendant was lawfully detained as a matter of law. Nothing in the appellate record suggests that defendant could have disputed or contradicted those facts. Even though it is sufficient to deny the facts stated in the police reports, and even though this denial may be made on information and belief, it still must be made under oath. (Garcia v. Superior Court (2007) 42 Cal.4th 63, 70.) The record does not indicate that either defendant or defense counsel could have truthfully made the necessary denial. Accordingly, defendant cannot show defective performance.
Separately and alternatively, defendant also cannot show prejudice. On this record, there is no way of knowing whether the officers’ personnel records actually contained any relevant and admissible evidence. Accordingly, we cannot say there was a reasonable possibility that filing a Pitchess motion would have had any effect on the outcome.
Defendant argues that, precisely because we have no way of knowing whether discovery of the officers’ personnel records could have changed the outcome, we should reverse and remand with directions to review those records in camera and to determine whether their nondisclosure was prejudicial. This puts the remedy cart before the error horse. It is true that, if the trial court has erred by denying a meritorious Pitchess motion, this is an appropriate appellate remedy. (People v. Gaines, supra, 46 Cal.4th at pp. 180-181.) Defendant, however, is not claiming that the trial court erred by denying a Pitchess motion; rather, he is claiming that his counsel rendered ineffective assistance by failing to file a Pitchess motion. We have found no authority for applying the Gaines remedy in this context. Unless defendant can show prejudice, he cannot show ineffective assistance of counsel at all. Hence, he cannot show that he is entitled to any appellate remedy.
This is not some kind of Catch-22. Defendant does have a remedy; however, it is not by way of appeal. The appropriate way to proceed would be to file a petition for writ of habeas corpus and then to seek discovery of the officers’ personnel records pursuant to Penal Code section 1054.9. (See Hurd v. Superior Court (2006) 144 Cal.App.4th 1100, 1106-1110.)
We therefore conclude that defendant has not shown that the failure to file a Pitchess motion constituted ineffective assistance.
DISPOSITION
The judgment is affirmed.
We concur, GAUT J., KING J.
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