Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050317743
Haerle, Acting P.J.
I. INTRODUCTION
On January 23, 2006, we filed an initial opinion in this case (People v. Smith (Jan. 23, 2006, A106965) [nonpub. opn.]) reversing appellant’s conviction for making criminal threats against a police officer (Pen. Code, § 422) and remanding the case to the trial court to conduct an in camera review of the personnel records of Sergeant James Creekmore of the San Pablo Police Department. We stated, in the conclusion of that opinion, that if “that inspection reveals no relevant information,” i.e., with regard to prior relevant misconduct by the officer, the court should “reinstate the judgment of conviction.” The trial court conducted the required inspection, found no relevant information, and reinstated the judgment of conviction under section 422.
All statutory references are to the Penal Code.
Appellant again appeals and asks this court to independently review the same personnel records, supplied us of course under seal. We have done so and agree with the trial court that those records contain no relevant discoverable evidence. We thus affirm the judgment of conviction.
II. FACTUAL AND PROCEDURAL BACKGROUND
To summarize the background of this case, we quote from our prior opinion, cited above: “In the early evening of a drizzly December 15, 2002, Sergeant James Creekmore of the San Pablo Police Department responded to a call from the Salvation Army facility in that city concerning a suspicious person in its vicinity. Creekmore, who was aware of prior problems at the facility with homeless people scattering donated items around the property, found appellant sleeping in a cardboard box in the building’s doorway. Clothing and toys were littered around the box. Creekmore told appellant he had ‘to move on’ adding ‘[y]ou can’t sleep here.’ Appellant arose, putting his back against the door to the building as he did so. Creekmore asked him if he was okay, and appellant responded that his back hurt. Creekmore asked if he needed an ambulance, but appellant responded in the negative.
“Appearing angry to Creekmore, appellant put the hood on his sweatshirt up and then placed his hands in his pockets. For safety reasons, Creekmore told appellant to take his hands out of his pockets, which appellant did. He also told appellant to clean up the area around the cardboard box in which he had been sleeping; appellant made no response to this request but, instead, passed by Creekmore. When he was about six feet away, he turned and angrily asked: ‘What is your name?’ Creekmore responded by saying, ‘Look, you just got to go.’ Appellant became more angry, and demanded: ‘What is your motherfucking name?’ Creekmore responded: ‘Look, I’m Sergeant Creekmore. You’ve got to leave.’ As appellant walked away, he said: ‘If we were in a war, I hope you die. You should die tonight.’ As appellant walked to the sidewalk in front of the building, with Creekmore watching him, he said several more times: ‘You should die tonight, Creekmore’ and ‘[y]ou’re gonna die tonight,’ and ‘you should die.’
“Appellant kept moving, but then stopped and started to look down; Creekmore feared he was looking for a rock or something to throw at a window or a passing car. As appellant reached a tree on the sidewalk about 30 feet away from Creekmore, he picked up a three-foot long piece of two-by-four lumber off the ground and began moving it up and down in his hands. As he did so, he apparently became even more enraged and, as he continued to move the board up and down, yelled ‘I’m gonna kill you, Creekmore.’ Creekmore feared for his safety and, as a consequence, drew his gun, pointing it downward, and began to back away from appellant. As he did so, he called on his radio for assistance. Appellant then charged at Creekmore, waving the board as he did so, and shouting repeatedly: ‘I’m gonna kill you, Creekmore.’ As Creekmore retreated, he tried to maintain about a 30-foot gap between himself and appellant, notwithstanding the latter’s increase in speed toward him.
“When appellant was about 15 feet away from him, Creekmore pointed the gun at appellant and yelled: ‘If you don’t drop the board, I’m gonna shoot your ass.’ Nonetheless, appellant continued to move toward him, quickening his pace. Creekmore ordered him to drop the board five to ten times. When appellant had come to within about 10 feet of him, Creekmore shown the light on his gun into appellant’s eyes; appellant nonetheless continued his ‘charge’ and began raising the board over his shoulder while still holding it with both hands. Creekmore, believing his safety was threatened, fired his gun at appellant; the latter, wounded by one of the bullets, dropped the board and fell to the ground, landing five feet away from Creekmore. The board landed about four to six feet away.
“Almost immediately Creekmore saw a passer-by, one Robert Silveiria, behind him, and ordered him to stop as he was a potential witness. Silveiria complied. Shortly thereafter, other officers arrived at the scene, searched appellant for weapons and assessed his injuries. Those turned out to be––after appellant was transported to and treated at John Muir Medical Center in Walnut Creek––several wounds to the face and right hand.” (Fn. omitted.)
In his prior appeal, we rejected appellant’s contentions that (1) there was no substantial evidence to support his conviction under section 422 and (2) the trial court erred in not reducing appellant’s conviction to a misdemeanor under section 17, subdivision (b). However, we agreed with appellant that the trial court had erred in not conducting, as requested by appellant, an in camera review of Sergeant Creekmore’s personnel files, and reversed and remanded the case to allow such to be done.
As noted above, the trial court did so, found no relevant discoverable evidence, and thence reinstated the conviction.
Pursuant to, e.g., People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229; People v. Hughes (2002) 27 Cal.4th 287, 330, and People v. Samuels (2005) 36 Cal.4th 96, 110, appellant again appeals and requests that we similarly review these records ourselves to determine if the trial court abused its discretion in its findings regarding the content of the pertinent records. The People agree both that we should do so and with the relevant standard of review, i.e., abuse of discretion.
III. DISCUSSION
We have been supplied with a Supplemental Clerk’s Transcript on Appeal, consisting of the personnel records of Sergeant Creekmore. This volume contains 423 pages, divided into six sections. Those six sections are entitled, in order: Discipline/Internal Affairs; Performance Evaluations (dated from 1984 to 2005); Commendations; Payroll History-Collision History-Miscellaneous; Training; and Background Information. We have reviewed all documents in all these sections and, as did the trial court, find nothing in them that would be discoverable via a Pitchess motion. The trial court was thus correct in reinstating the judgment of conviction.
IV. DISPOSITION
The judgment is affirmed.
We concur: Lambden, J., Richman, J.