Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. NA080681 of Los Angeles County. Charles D. Sheldon, Judge. Conditionally reversed and remanded with directions.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Defendant Madeleine Washington was convicted by a jury of possession for sale of cocaine base. (Health & Saf. Code § 11351.5.) In her opening brief, she asks this court to review the record of the in camera hearing on her Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.) We conclude that the trial court abused its discretion in ruling on the Pitchess motion. Therefore, we conditionally reverse the judgment and remand the matter for a new Pitchess hearing.
In a supplemental opening brief, Washington contends that a recent amendment to Penal Code section 4019 applies retroactively to her sentence, and entitles her to additional presentence custody credits. Given that we are remanding the matter, Washington may direct a request for correction of such credits to the trial court, if appropriate.
BACKGROUND
I. PROSECUTION CASE
Early one morning, Long Beach Police Department (LBPD) Officers Randy Beach and Juan Reyes found defendant Madeleine Washington and another person sitting inside a parked car in an area of Long Beach known for drug activity. When the officers contacted Washington, she opened the car door and white smoke and the smell of burning rock cocaine emanated. Washington later admitted that she possessed rock cocaine and was smoking it before the officers arrived.
During the course of her arrest and booking, the officers and other LBPD personnel recovered a total of 2.31 grams of a substance containing cocaine base from various parts of Washington’s body. The officers also recovered several items from Washington and the car, which the prosecution argued indicated that Washington possessed the cocaine for sale: cash in various denominations totaling $590; pieces of paper from her wallet with writing on them that the prosecution described as “pay/owe” sheets; plastic baggies with the corners cut off; and a cell phone with text messages in it, such as “dis taz I need a 40.” A plastic baggie that Washington was concealing in her mouth contained 10 individually wrapped pieces of rock cocaine.
According to Officer Jason Lehman, Washington admitted that she possessed the cocaine for sale and that she had been selling rock cocaine for the past month and a half. She also told him that the amount of cocaine she had on her at the time of her arrest was too much for her to smoke.
II. DEFENSE CASE
At trial, Washington admitted that, at the time of her arrest, she possessed rock cocaine and had been smoking it. She denied that she possessed the drugs for sale and denied that she told Officer Lehman she intended to sell or had been selling cocaine. She also denied telling him that the cocaine she possessed was too much for her to smoke.
Washington also challenged the prosecution’s assertion that the evidence indicated she possessed the cocaine for sale. For example, she testified that the sheets of paper found in her wallet were related to debts, not drug sales; and the text messages, which were found in a cell phone she shared with her girlfriend, were not directed at her.
DISCUSSION
I. PITCHESS MOTION
Washington filed a Pitchess motion, requesting pretrial discovery of personnel records of LBPD Officers Reyes, Beach and Lehman. She sought records relating to “acts of bias, dishonesty, excessive use of force against persons or any acts constituting a violation of statutory law or constitutional rights of others.” In her motion, Washington asserted that Officers Reyes and Beach used excessive force during the course of her arrest and then fabricated portions of the police report, with Officer Lehman’s corroboration, in order to cover up the alleged excessive force. The trial court ordered the LBPD to produce records for inspection. The court conducted an in camera review of those records and concluded that there was no discoverable material to be disclosed to Washington.
Washington requests an independent review of the in camera proceedings to determine whether the trial court properly exercised its discretion in denying her request for discovery. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232; People v. Wycoff (2008) 164 Cal.App.4th 410, 414-415.) We review the denial of Pitchess discovery for abuse of discretion. (People v. Mooc, supra, 26 Cal.4th at p. 1228.)
We have conducted an independent review of the sealed reporter’s transcript of the in camera hearing, and have reviewed the trial court’s decision regarding the discoverability of material in the officers’ personnel files. We find that the trial court abused its discretion.
Before turning to our review of the in camera hearing, we note that Washington satisfied the good cause requirement for discovery of information in the officers’ personnel files. (Evid. Code, § 1043.) She provided a specific description of the discovery sought and demonstrated a logical link between the defense proposed and the pending charge. She also presented “a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents,” such as the police reports. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1025.) According to Washington, Officers Beach and Reyes exhibited bias and animosity toward her when they beat her and then worked with Officer Lehman to fabricate evidence (her alleged statements) to turn a routine possession case into a possession for sale case. Washington properly sought records relating to dishonesty and bias on the part of the three officers, as well as records relating to excessive force on the part of arresting Officers Beach and Reyes.
Notwithstanding that Washington presented a plausible and relevant factual scenario of misconduct involving all three officers, the trial court’s in camera hearing related to records concerning Officers Beach and Lehman only. Moreover, the trial court indicated that it was focusing its attention on records relating to false statements, including perjury, false reports and other false statements by Officers Beach and Lehman. The trial court apparently concluded that Washington had not made a sufficient showing to warrant an in camera hearing related to bias or excessive force.
The parties failed to include in the record on appeal a transcript of the portion of the Pitchess hearing that was held in open court prior to the in camera review. It appears from a reading of the transcript of the in camera review that the only documents considered by the trial court were LBPD complaint files concerning Officers Beach and Lehman.
We find that the trial court abused its discretion in deciding Washington’s Pitchess motion. The trial court should have ordered the LBPD to produce all records relating to dishonesty, bias and excessive force on the part of Officers Beach and Reyes, and dishonesty and bias on the part of Officer Lehman. We remand the matter for a new in camera hearing during which time the trial court can examine these records, and disclose to Washington “information [that] is relevant to the subject matter involved in the pending litigation,” but does not fall within the statutory exceptions and limitations. (Evid. Code, § 1045, subd. (a); People v. Mooc, supra, 26 Cal.4th at pp. 1226-1227.)
In the event the trial court discloses information to Washington, the court shall allow Washington an opportunity to demonstrate prejudice and shall order a new trial if there is a reasonable probability that the outcome would have been different had the information been disclosed. If, after a reasonable time, Washington has not moved for new trial or the court finds no reasonable probability of a more favorable outcome if the information had been disclosed, the court shall reinstate the judgment. (People v. Hustead (1999) 74 Cal.App.4th 410, 419, 422-423.)
II. PENAL CODE SECTION 4019
At the time of Washington’s sentencing, Penal Code section 4019 provided for one day of work time credit and one day of conduct credit for each six-day period of custody. (Pen. Code, § 4019, subds. (b) & (c) (2008).) Effective January 25, 2010, the statute was amended to provide for one day each of work time and conduct credit for every four-day period of custody. (Pen. Code, § 4019, subds. (b) & (c), as amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50 (Senate Bill No. 18).) Washington contends that the amended statute should be applied retroactively, entitling her to additional credits.
“A challenge to an award of presentence conduct credit may be raised at any time. [Citation.]” (People v. Florez (2005) 132 Cal.App.4th 314, 318, fn. 12.) Penal Code section 1237.1 provides that a request for correction of such credits should first be presented in the trial court. Where other issues are litigated on appeal, however, “section 1237.1 ‘does not require defense counsel to file [a] motion to correct a presentence award of credits in order to raise that question on appeal.’ [Citation.]” (People v. Florez, supra, 132 Cal.App.4th at p. 318, fn. 12.)
Because we are remanding the matter on the Pitchess issue, Washington may direct her request for correction to the trial court.
DISPOSITION
The judgment is conditionally reversed and the cause remanded with directions to the trial court to conduct an in camera hearing on Washington’s discovery motion consistent with this opinion and applicable statutory provisions, and to make a record in accordance with the procedures set forth in People v. Mooc (2001) 26 Cal.4th 1216, 1226-1230. If the hearing reveals no discoverable information, the trial court shall reinstate the original judgment. If the in camera hearing reveals discoverable information, the trial court shall grant discovery, allow Washington an opportunity to demonstrate prejudice, and order a new trial if prejudice is demonstrated. If prejudice is not demonstrated, the trial court shall reinstate the original judgment.
We concur: ROTHSCHILD, Acting P. J., JOHNSON, J.