Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF123105A, Lee P. Felice, Judge.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez, for Plaintiff and Respondent.
OPINION
Poochigian, J.
STATEMENT OF THE CASE
On May 16, 2008, the Kern County District Attorney filed a consolidated information in superior court charging appellant James Hershell Scates in count 1 with receiving stolen property (Pen. Code, § 496, subd. (a)); in counts 2 and 4 with unlawful possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); in count 3 with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)); and in count 5 with unlawful possession of ammunition by an ex-felon (Pen. Code, § 12316, subd. (b)(1)). Each count alleged appellant committed the offense while on release from custody (Pen. Code, § 12022.1) and further alleged three prior prison terms (Pen. Code, § 667.5, subd. (b)).
On June 20, 2008, the court granted appellant’s motion to sever counts 1 and 5, partially granted his motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), and conducted an in camera review of the personnel records of Bakersfield Police Officer Sean Underhill. On September 5, 2008, a jury found appellant not guilty of counts 1 and 5. On September 10, 2008, a jury found appellant guilty of the substantive offenses charged in counts 2, 3, and 4. On September 15, 2008, the court conducted a bifurcated hearing of the remaining special allegations, dismissed the prior prison term allegations, and appellant admitted the bail allegations (Pen. Code, § 12022.1).
On September 30, 2008, the court sentenced appellant to three years’ probation (Pen. Code, § 1210.1), imposed a number of fines and fees, and awarded 225 days of presentence custody credits. On the same date, appellant filed a timely notice of appeal. We affirm the judgment of conviction and sentence.
STATEMENT OF FACTS
March 21, 2008, Incident
On March 21, 2008, Shawn Clark informed Kern County Deputy Sheriff Wesley Kraft that his car had been burglarized and a Nextel cellular telephone had been stolen. The phone was equipped with a mobile locator and Clark told Kraft he had traced the item on the Internet to an address on Linda Kay Street in Bakersfield. Kraft and Deputy Paul Leonard went to the address. Leonard arrived first and found appellant with a red Dodge truck. After appellant waived his Miranda rights, the deputies asked if he had a cell phone. Appellant claimed he purchased a cell phone that very day from someone named Matt. Appellant then removed a Nextel instrument and charger from the truck. Kraft made contact with Clark sometime later and Clark identified the phone as his.
Deputy Leonard asked appellant for permission to search the truck and appellant granted such permission to Deputy Kraft. Appellant opened the toolbox on the trailer attached to the pickup truck. The deputies found a jewelry box inside the toolbox. They opened the jewelry box and found five one-inch straws filled with narcotics. They also found a plastic container in a toolbox inside appellant’s truck. The container had two plastic baggies and a piece of drinking straw filled with narcotics.
April 21, 2008, Incident
During the 1:00 a.m. hour on April 21, 2008, Bakersfield Police Officer Sean Underhill pulled appellant over in the vicinity of Hageman Road and Calloway Drive. According to Underhill, appellant was driving a red Dodge pickup truck and the license plate light was out. Appellant’s demeanor changed during the course of the vehicular stop and he became more nervous and “started to fidget a whole lot.” Appellant’s pickup truck was “a small truck lower to the ground” and Underhill eventually saw what appeared to be a live.38-caliber bullet lying on the floorboard. Fearing for his safety, Underhill first asked appellant to step out of the vehicle and then retrieved the bullet.
Officer Underhill placed appellant under arrest and summoned a canine officer to the scene. The canine sniffed the appellant’s vehicle and “alerted” to a metal toolbox installed in the bed of the truck. Underhill stated he used appellant’s keys to unlock the toolbox. The canine officer, Senior Officer Jason Matson, pulled out two hinged eyeglass cases and a can of chewing tobacco. One eyeglass case contained a methamphetamine smoking pipe. The other case contained baggies of a crystalline substance that appeared to be methamphetamine. The tobacco can contained four small Ziploc baggies of suspected crystal methamphetamine.
According to Underhill, appellant “had the keys for the toolbox on his belt, even though he told me he didn’t have the keys for it.”
Defense
Appellant did not present documentary or testimonial evidence on his behalf but chose to rely on the state of the prosecution evidence.
DISCUSSION
I. DID THE TRIAL COURT ERR UNDER EVIDENCE CODE SECTIONS 1043 AND 1045 BY DENYING APPELLANT’S PITCHESS REQUEST FOR AN IN CAMERA INSPECTION OF EXCESSIVE-FORCE COMPLAINTS AGAINST OFFICER UNDERHILL?
Appellant asserts that Officer Underhill broke his arm during the April 21, 2008, incident and contends the trial court abused its discretion by denying his request for an in camera review of excessive force complaints against the officer.
On May 30, 2008, appellant filed a Pitchess motion for pretrial discovery as to the personnel records of Bakersfield Police Officer Underhill (Evid. Code, § 1043). Appellant sought, among other things, complaints against Underhill indicating dishonesty, excessive force, false arrest, illegal detention, and fabrication of charges, evidence or reports. In support of the motion, appellant’s trial counsel submitted a declaration on information and belief. Counsel declared that Underhill misrepresented facts in his police report, including the true basis for the stop, the amount of currency seized, and the alleged presence of a toolbox key on appellant’s person. Counsel asserted: “No key found on defendant had the ability to open the aforementioned tool box. Defense believes that Underhill lied about a lock and key to create a stronger case against defendant.” Counsel further declared the officer engaged in violent conduct that caused appellant to suffer a broken arm at the time of arrest.
At an in limine hearing on September 3, 2008, the court indicated that counts 1 and 5 had been “severed from the information” and that those counts would be tried first, with counts 2, 3, and 4 trailing for trial. Appellant’s trial counsel advised the court that he had subpoenaed Kern Medical Center records to the court and maintained the records would show that arresting officers had an aggressive tendency toward appellant. Counsel specifically asserted: “Apparently the officers broke Mr. Scates’s wrist during one of those arrests.” Defense counsel maintained the records would be relevant to show bias, i.e., that the officers wrote an incomplete report regarding the arrest of appellant. The court deferred ruling on the admissibility of the records because the hospital file could not be located.
On June 9, 2008, the Bakersfield City Attorney filed written opposition to the Pitchess Motion on behalf of the real parties in interest, the City of Bakersfield and Officer Underhill. The City Attorney, on behalf of the City and Underhill, conceded that appellant had made a sufficient showing to justify an in camera review of citizen complaints for dishonesty as to false reporting. However, the City Attorney opposed an in camera review of records of citizen complaints alleging excessive force, false arrest, illegal detention and fabrication of charges. The City Attorney also opposed disclosure of written procedures and records of outcomes and dispositions. The City Attorney specifically maintained the defense had failed to articulate a nexus between Underhill’s alleged use of force and any proposed defense to the narcotics charges.
Pitchess and its progeny establish a scheme for balancing a criminal defendant’s due process right to a fair trial and a police officer’s privacy right to maintaining the confidentiality of his or her employment file. (People v. Mooc (2001) 26 Cal.4th 1216, 1227.) To obtain discovery of police officers’ employment files, “the information sought must be requested with sufficient specificity to preclude the possibility of a defendant’s simply casting about for any helpful information....” (Id. at p. 1226.) Only evidence which is similar to the alleged misconduct is discoverable. (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1020.) Pitchess discovery motions are not limited solely to issues of officer violence; such motions are proper for issues relating to credibility, among other things. (People v. Hustead (1999) 74 Cal.App.4th 410, 417.)
When a defendant seeks discovery from a peace officer’s personnel records, he or she must “file a written motion with the appropriate court” (Evid. Code, § 1043, subd. (a)) and identify the proceeding, the party seeking disclosure, the peace officer, the governmental agency having custody of the records, and the time and place where the motion for disclosure will be heard (Evid. Code, § 1043, subd. (b)(1)). In addition, the Pitchess motion must describe “the type of records or information sought” (Evid. Code, § 1043, subd. (b)(2)), and include “[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records” (Evid. Code, § 1043, subd. (b)(3)). The affidavits need not be based on personal knowledge but the information sought must be requested with sufficient specificity to preclude a fishing expedition by the defense. (People v. Mooc, supra, 26 Cal.4th at p. 1226; City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86.)
When presented with a discovery motion for police records, the trial court rules as to whether there is good cause for disclosure. (Evid. Code, §§ 1043, 1045.) The standards for a showing of good cause under Evidence Code section 1043, subdivision (b) are “relatively low.” (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 83.) A showing of “good cause” requires a defendant to demonstrate the relevance of the requested information by providing a “specific factual scenario” which establishes a “plausible factual foundation” for the allegations of officer misconduct committed in connection with the defendant. (Id. at pp. 85-86; California Highway Patrol v. Superior Court, supra, 84 Cal.App.4th at p. 1020.) A “plausible factual foundation” may be established by a reading of the police reports in conjunction with defense counsel’s affidavit. (See City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at pp. 85-86.)
To determine whether a defendant has established good cause for in-chambers review of an officer’s personnel records, the trial court must see whether the defendant has established materiality of the requested information to the pending litigation. The Supreme Court has held a trial court must ask itself the following questions: “Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? Under what theory would the requested information be admissible at trial?” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1026-1027.) If defense counsel’s Pitchess affidavit adequately responds to these questions and states upon reasonable belief that the government agency has the requested records or information, then the defendant has shown good cause for discovery and an in-chambers review of the personnel files of the officer in question. (Id. at p. 1027.)
Here, defense counsel’s declaration in support of the Pitchess motion stated in pertinent part:
“9. That I am informed and believe that as to Officer Underhill, he misrepresented facts in his police report.
“According to Officer Underhill, he pulled Mr. Scates over for a nonoperational license plate light. However, while speaking to Mr. Scates, Officer Underhill repeatedly stated to him that the sole reason for his stop was for a lack of valid registration tags. When Mr. Scates provided Underhill with the proper registration information, Underhill manufactured a false reason for the stop. At the time of the stop, there was nothing wrong with Mr. Scates’ license plate light.
“Underhill further states that he seized $174 from defendant. However, Mr. Scates had over $400 in his possession that was seized by Underhill. Underhill omits what he did with over $200 of currency seized from defendant’s person at the time of the arrest.
“Furthermore, in his report, Underhill states that a key found on defendant opened a locked tool box where narcotics were found. This is a lie. No key found on defendant had the ability to open the aforementioned tool box. Defense believes that Underhill lied about a lock and key to create a stronger case against defendant. Defense believes that Underhill is lying to cover up his own violent conduct that resulted in defendant’s arm breaking during the arrest. After defendant called Underhill ‘a piece of shit,’ Underhill aggressively handled defendant, breaking his left arm. Defendant was rushed to the hospital for medical attention and his arm was reset and placed in a cast. Defense believes that Underhill lied in his report to justify using overly aggressive means to arrest a citizen.”
Respondent submits that defense counsel’s declaration “fails to provide a version of events that is plausible and internally consistent, but instead amounts to a claim that the officers fabricated virtually all the events surrounding his arrest.” A Pitchess motion need not provide a motive for the alleged officer misconduct. However, to show good cause as required by Evidence Code section 1043, defense counsel’s supporting declaration must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence. A Pitchess motion is obviously strengthened by a witness account corroborating the occurrence of officer misconduct. However, such corroboration is not required. What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of pertinent documents. (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1024-1025.)
On June 20, 2008, the superior court conducted a hearing on appellant’s Pitchess motion. The City Attorney, representing the City and Officer Underhill, conceded that the court should conduct an in camera review as to Officer Underhill with respect to complaints for dishonesty and false reporting. The court acknowledged, “It’s the Court’s position that any complaint that would reflect on dishonesty would be discoverable.” In response, defense counsel urged that an in camera review also be conducted for prior complaints of excessive force. He stated: “Our contention is that Officer Underhill exaggerated his report to hide the fact that he used excessive force against my client.” The City Attorney opposed that request because alleged excessive force did not go to a defense to the charges. The City Attorney observed that appellant was not charged with resisting arrest or a similar offense. The court agreed with counsel noting it did not see a connection between alleged excessive force and a defense to the charged offenses.
In People v. Hustead (1999) 74 Cal.App.4th 410 (Hustead), defendant was charged with felony evasion of arrest and misdemeanor resisting arrest in Kern County following a high-speed chase through the City of Bakersfield. At a hearing on defendant’s Pitchess motion, the prosecution moved to dismiss the resisting arrest charge in furtherance of justice and the trial court then denied the Pitchess motion. Defendant was subsequently convicted of the felony count and related enhancements, resulting in a sentence of 25 years to life in state prison. On appeal to this court, defendant claimed the police report contained material misstatements and the officer used excessive force against him. Defendant contended he made a sufficient showing of good cause to justify at least an in camera examination of the arresting officers’ files. We disagreed. To the extent the motion was based on a claim of excessive force, that claim became irrelevant with the dismissal of the resisting arrest count. Defense counsel attempted to argue that a claim of excessive force was still pertinent to the issue at trial. However, he failed to demonstrate how a history of excessive force would have any bearing on the issue of evasion of arrest in a motor vehicle. Therefore, we held the Pitchess motion as properly denied on that ground. (Id. at pp. 415-416.)
The Hustead case, of course, did not entail a physical injury allegedly inflicted by a detaining officer but did involve a defense claim of misrepresentation of facts by the pursuing officer. (Hustead, supra, 74 Cal.App.4th at pp. 415-416.) In the instant case, defense counsel’s Pitchess affidavit asserted that Officer Underhill misrepresented facts in his police report “to cover up his own violent conduct that resulted in defendant’s arm breaking during the arrest.” At the June 20, 2008, Pitchess hearing, the court indicated that “any complaint that would reflect on dishonesty would be discoverable.” On appeal, appellant contends previous complaints, if any, about Underhill’s use of force are also material because they are relevant to “the credibility of the entire police account of its encounter” with appellant. Although counsel’s affidavit questioned the credibility and reporting of Officer Underhill, it did not address the credibility of Canine Officer Matson, whose statements, conduct, and supplemental report corroborated a great many details set forth in Underhill’s police report.
Appellant insists Officer Underhill committed misconduct by using excessive force in handling appellant and that Officers Underhill and Matson attempted to cover up that misconduct by falsely reporting events surrounding the arrest. Defense counsel’s declaration does not pinpoint the time of the fracture. Underhill’s hardcopy report indicated he made the stop at about 1:20 a.m. Matson’s hardcopy supplemental report indicated he arrived at the scene at about 1:40 a.m. Neither report mentions that appellant sustained an injury or specifies its timing. We summarized, ante, the portions of the appellate record referring to appellant’s broken limb and the medical records documenting it. Although the trial court gave the pertinent medical records to the prosecution for duplication and review by both trial counsel, defense counsel never again suggested or proffered a nexus between appellant’s broken bone and the conduct of Officer Underhill.
Despite trial counsel’s apparent abandonment of the point in the superior court, appellant now maintains that prior claims of excessive force were relevant to the impeachment of both Officer Underhill and Officer Matson. As we have noted, the defendant must present a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1025.) The pertinent records in the instant case included appellant’s medical records. Nothing in the record on appeal suggests that defense counsel failed to receive and review duplicate copies of the medical records. Nor does the record does reflect any action by defense counsel after receiving and reviewing copies of the records.
Underhill and Matson never denied that appellant sustained an injury in connection with their encounter. Further, defense counsel apparently maintained that Underhill engaged in a pretextual stop and fabricated evidence at a point in time well before the handling that allegedly resulted in the broken arm. Appellant does not adequately explain how such a sequence of events would amount to a defense to the charges pending against him. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1024.)
In evaluating a Pitchess motion, courts may apply common sense in determining what is plausible. They may make determinations based on a reasonable and realistic assessment of the facts and allegations. (People v. Thompson (2006) 141 Cal.App.4th 1312, 1318-1319.) Under the facts and circumstances of the instant case, appellant failed to establish a logical link between a proposed defense and the pending charge. The trial court properly exercised its discretion in denying the motion with respect to claims of excessive force and reversal is not required.
Even if we were to assume error in the instant case, a defendant who has established an erroneous denial of Pitchess discovery must also demonstrate a reasonable probability of a different outcome had the evidence been disclosed. (People v. Gaines (2009) 46 Cal.4th 172, 182-183.) Appellant has failed to demonstrate how the introduction of previous excessive force-complaints against Officer Underhill would create a reasonable probability of a different outcome in the instant case, particularly where the charged offenses included possession and transportation of controlled substances.
II. DID THE TRIAL COURT ERR UNDER EVIDENCE CODE SECTIONS 1043 AND 1045 BY NOT MAKING DOCUMENTS AVAILABLE TO THE DEFENSE AFTER CONDUCTING AN IN CAMERA PITCHESS REVIEW OF COMPLAINTS AGAINST OFFICER UNDERHILL FOR DISHONESTY OR FALSE REPORTING?
Appellant acknowledges the trial court conducted an in camera review of documents concerning complaints against Officer Underhill for dishonesty and false reporting. However, he then argues the trial court may have erred under Evidence Code sections 1043 and 1045 by making available to the defense only a portion of the documents setting forth complaints against Underhill for dishonesty or false reporting.
Appellant requests this court to “review any Pitchess material which the trial court reviewed and ‘examine the sealed transcript and determine the propriety of the trial court’s ruling’ to the extent that it granted Mr. Scates’s Pitchess motion and ordered some if not all documents to be turned over to the defense.”
The in camera review procedure and disclosure guidelines in Evidence Code section 1045 ensure a balancing of the officer’s privacy interests with the defendant’s need for disclosure. Courts have generally refused to disclose verbatim reports or records of any kind from the personnel files of peace officers. Instead, courts have ordered agencies to reveal the name, address, and telephone number of prior complainants and witnesses and the dates of the incidents in question. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
In conducting an in camera Pitchess hearing, the trial court should make a record of what documents it examined before ruling. Such a record will permit future appellate review. If the documents produced by the custodian are not voluminous, the court can photocopy and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered or state for the record what documents it examined. (People v. Mooc, supra, 26 Cal.4th at p. 1229.) In the instant case, the trial court reviewed Underhill’s records in camera and concluded there was nothing to disclose that would reflect upon dishonesty of Officer Underhill. We have read the sealed reporter’s transcripts of the June 20, 2008, Pitchess hearing and the January 4, 2010, hearing to identify the items reviewed by the trial court. We have further independently reviewed the items examined and considered by the trial court at the in camera hearings. We conclude the trial court did not abuse its discretion by declining to disclose the contents of Underhill’s personnel files.
III. DID THE TRIAL COURT MISCALCULATE CUSTODY CREDITS?
Appellant contends the trial court should have awarded him 243 days of custody credits (163 days of actual-time presentence credits and 80 days of work-time and good-time credits) rather than 225 days of custody credits (151 days of actual-time and 74 days of work-time and good-time credits).
Appellant maintains 163 days of actual-time credits is the correct figure because he was incarcerated continuously from April 21 through September 30, 2008. He further contends the computation of work-time and good-time credits based on the 163 days yields 80 additional credits for a total of 243 days.
Generally, no appeal shall be taken on the ground of an error in the calculation of presentence custody credits discovered after sentencing unless the appellant first moves for correction of the record in the trial court. (Pen. Code, § 1237.1.) However, when a direct appeal raises other issues, section 1237.1 does not require an appellant to file a motion in the trial court as a condition to challenging the amount of presentence custody credits on appeal. (People v. Acosta (1996) 48 Cal.App.4th 411, 421.)
In the instant case, appellant contends he was continuously incarcerated from April 21 through September 30, 2008, a period of 163 days. However, the record reveals appellant was actually released from custody on September 15, 2008. The period from April 21 through September 15, 2008, is actually 148 days. Work-time/good-time credits are calculated by taking the number of actual days, dividing the figure by four, discarding any remainder, and multiplying the result by two. (In re Marquez (2003) 30 Cal.4th 14, 25-25.) Here, 148 divided by four equals 37. The quotient of 37 is multiplied by two, yielding 74. Appellant is entitled to 148 days of actual custody credits plus 74 days of work-time and good-time credits for a total sum of 222 days of presentence custody credits.
The trial court should be directed to amend the abstract of judgment accordingly and to send certified copies of the amended abstract to all appropriate parties and entities.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, Acting P.J., Hill, J.
On September 4, 2008, the prosecutor requested an Evidence Code section 402 hearing to allow Officer Underhill to testify as to the nature of the arrest and “whether or not there was any use of force or any circumstances that would have shown that the defendant... had his wrist broken by the officer.” The trial court clerk could not identify or locate any subpoenaed medical records associated with the instant case and defense counsel made no further mention of the medical records prior to the return of the not guilty verdicts on counts 1 and 5. On September 9, 2008, the court took up counts 2, 3, and 4. During the cross-examination of Officer Underhill, defense counsel asked whether anything happened to appellant’s arm while he was being place into custody. The court struck the question and admonished the jury to disregard it.
Court and counsel subsequently conferred outside the presence of the jury. According to defense counsel, appellant represented to him that Officer Underhill had broken his arm on the day of the incident. The court acknowledged the issue had been raised at the in limine hearing but the court had still not seen the subpoenaed records from Kern Medical Center. At that point in the proceedings, the clerk reported the court had indeed received the medical records. The court opened the sealed envelope, checked the records, and noted a “fracture of the ulnar styloid and also the trigueteral fracture” in late April and early May 2008. The court turned the envelope over to the prosecutor with instructions to make copies for defense counsel. The court suggested this procedure was necessary so that it could “give it proper response,” presumably at a later hearing. However, neither the court nor counsel made further reference to the KMC medical records and appellant’s broken limb during the remainder of the trial of counts 2, 3, and 4.