PEOPLE v. RUSSELL

THE PEOPLE, Plaintiff and Respondent,
v.
STEVEN MICHAEL RUSSELL, Defendant and Appellant.

B213074.

Court of Appeals of California, Second Appellate District, Division Seven.

January 19, 2010.

Melissa J. Kim, 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, Senior Assistant Attorney General, Kenneth C. Byrne and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published in the Official Reports

ZELON, J.

Defendant Steven Michael Russell appeals from the judgment entered after a jury convicted him of petty theft, as a lesser included offense of robbery, and commercial burglary. He contends the trial court abused its discretion by denying his motion for law enforcement personnel records (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess motion).) We agree and remand for the limited purpose of reconsideration of the discovery motion.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

On October 20, 2008, defendant was charged by information with two felony counts: second degree robbery (Pen. Code, § 211)^{[ 1 ]} and commercial burglary (§ 459), and two misdemeanor counts: giving false information to a police officer (§ 148.9) and interfering with a police officer in the lawful performance of official duties. As to the two felony counts, it was specially alleged defendant was subject to sentencing under the "Three Strikes" law for having suffered one prior violent or serious felony conviction for attempted murder (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); and he had served one prior prison term for a felony within the meaning of section 667.5, subdivision (b)(1). As to the second degree robbery count, the information also specially alleged defendant had suffered one prior serious felony conviction for assault with a deadly weapon under section 667, subdivision (a)(1). Defendant entered pleas of not guilty and denied the special allegations. However on December 18, 2008, he pleaded no contest to the two misdemeanor counts.

2. Summary of Trial Evidence on Felony Counts of Second Degree Robbery and Commercial Burglary

On September 28, 2008, Paul Robles worked at the Food-4-Less Store in Long Beach, where there had been about 40 thefts in the prior 30 days. On this date, Long Beach Police Officers Chris Zamora and Luis Rodriguez were in the store in response to another reported theft. As Robles was speaking to the officers, he noticed defendant walking towards the front end of the store. Defendant appeared to be upset, and he gave the officers "a dirty look." Defendant walked over and stood by a display of greeting cards where he stood glancing at Robles and the officers. After the officers left, defendant went to the liquor section. He waived to Robles before retrieving a bottle of Bacardi Rum from a shelf. Holding the bottle like a club, defendant approached Robles, who was at the checkout stand. Without looking at him, defendant said, "Do something. Do something," as he walked by Robles and left the store. Defendant made no attempt to pay for the liquor. Robles followed defendant outside and telephoned police.

Officers Zamora and Rodriguez were still in the area and immediately responded. Robles directed the officers' attention to defendant who was walking quickly down the street. The officers took defendant into custody and recovered the bottle of Bacardi. According to Officer Zamora, defendant was advised of his right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694.), which defendant waived. Defendant admitted to the officers he went to the store "to jack a bottle" and had no money in his possession. Defendant also said he did not care about the store employees and would "jack "them again, and would "knock `em out."

Defendant neither testified nor presented other evidence in his defense. The defense theory was that defendant was guilty only of petty theft, stealing the liquor, but did not commit robbery because he did not use force or fear to commit the theft, and did not commit burglary because he did not enter the store with the intent to steal the liquor.

At the conclusion of the trial, defendant was acquitted of second degree robbery, but convicted of petty theft as a lesser included offense of robbery, and commercial burglary. In a bifurcated proceeding, the trial court found true the prior conviction allegations. The trial court orally sentenced defendant to an aggregate seven-year term in state prison, consisting of the upper term of three years for commercial burglary, doubled to six years under the Three Strikes law, plus one year for the prior prison term enhancement. The trial court orally imposed concurrent terms of six months for giving false information to a police officer and one year for interfering with a police officer in the lawful performance of official duties.

DISCUSSION

1. Good Cause Was Established to Conduct an In Camera Review of the Officers' Personnel Records

"For approximately a quarter-century our trial courts have entertained what have become known as Pitchess motions, screening law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant's defense." (People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc) (fn. omitted); see Pitchess v. Superior Court, supra, 11 Cal.3d 531.) To balance the defendant's right to discovery of records pertinent to his or her defense with the peace officer's reasonable expectation that his or her personnel records will remain confidential, the Legislature has adopted a statutory scheme requiring a defendant to meet certain prerequisites before his or her request may be considered. (See §§ 832.5, 832.7 and 832.8; Evid. Code, §§ 1043-1047 [statutory scheme governing Pitchess motions].) Specifically, a defendant seeking discovery of a peace officer's confidential personnel record must file a written motion describing the type of records or information sought (Evid. Code, § 1043) and include with the motion an affidavit demonstrating "good cause" for the discovery and the materiality of such evidence relative to the defense. (Mooc, at p. 1226; see also Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) The information must be requested with "sufficient specificity to preclude the possibility of a defendant's simply casting about for any helpful information." (Mooc, at p. 1226.)

Once the trial court concludes the defendant has satisfied these prerequisites, the custodian of records is obligated to bring to court all documents "potentially relevant" to the defendant's motion. (Mooc, supra, 26 Cal.4th at p. 1226.) The trial court must then examine the information in chambers, outside the presence of any person except the proper custodian "and any other persons as the person authorized to claim the privilege is willing to have present." (Evid. Code, §§ 915, subd. (b), 1045, subd. (b); see Warrick, supra, 35 Cal.4th at p. 1019.) Subject to certain statutory exceptions and limitations,^{[ 2 ]} the trial court must then disclose to the defendant "`such information [that] is relevant to the subject matter involved in the pending litigation.'" (Mooc, at p. 1226; Warrick, at p. 1019.) "A trial court's ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion." (People v. Hughes (2002) 27 Cal.4th 287, 330.)

Defendant challenges the trial court's denial of his motion, arguing he established the necessary good cause to review the records of Officers Zamora and Rodriguez. He argues he satisfied the "relatively low threshold" for establishing good cause for an in camera review. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83-84; Warrick, supra, 35 Cal.4th at p. 1019.)

We agree. The Supreme Court made clear in Warrick, in addition to a specific description of the discovery sought and a demonstration of a logical link between the defense proposed and the pending charge, good cause for Pitchess discovery requires only that the defendant present a factual scenario of officer misconduct "that might or could have occurred[,]" explaining that "a credibility or persuasiveness standard at the Pitchess discovery stage would be inconsistent with the statutory language." (Warrick, supra, 35 Cal.4th at pp. 1021, 1026.) The Court also held that, depending on the circumstances of the case, the defendant's factual scenario "may consist of a denial of the facts asserted in the police report." (Id. at pp. 1024-1025.) Although a factual scenario need not be reasonably probable or credible, and although the denial of facts in a police report sometimes may establish the required plausible factual foundation, a sufficient plausible scenario must present "an assertion of police misconduct that is both internally consistent and supports the defense proposed to the charges." (Id. at pp. 1024-1025, 1026.)

In support of defendant's motion, his counsel submitted a declaration stating, in part, he believed Officer Rodriguez (who wrote the arrest report) lied, but asserted that defendant never threatened any person with harm. During his interview with Officers Zamora and Rodriguez, defendant never said that he went to the Food-4-Less Store to "jack a bottle." Indeed, defendant "made no admissions of any kind." The prosecutor opposed the motion as to Officer Rodriguez on various grounds, which are not pertinent here. With respect to Officer Zamora, the prosecutor noted that defense counsel's declaration did not attribute any statements, false or otherwise, to Officer Zamora and thus failed to establish good cause for granting the motion as to him.

In denying defendant's showing of good cause to warrant in camera review of Officers Zamora and Rodriguez's records, the trial court stated, "[The Pitchess motion] is nothing more than a fishing expedition." ~(RT B-2)~

Although the foundation for defendant's claim of police misconduct is less than overwhelming, in light of the minimal standard enunciated in Warrick, the trial court should have granted the motion and conducted an in camera review of the officers' personnel records to determine if there was any relevant material responsive to allegations of "lying" (phrased in the motion as "acts involving falsely reporting having seen something which did not occur; reporting falsely regarding witness and suspect statements; lying about statements given under the guise of Miranda; the giving of false testimony; fabrication of evidence or an admission, writing of false police reports or perjury."^{[ 3 ]} Plausibility, not ascertained fact, is the linchpin under Warrick; and it is conceivable the admissions made by defendant were fabricated by Officers Zamora and Rodriguez when the arrest report was written. These admissions were the sole evidence that defendant harbored the intent to steal liquor prior to entering the Food-4-Less Store, and thus committed burglary.^{[ 4 ]} The declaration therefore "establish not only a logical link between the defense proposed and the pending charge, but also [] articulate[d] how the discovery being sought would support such a defense or how it would impeach the officer's version of events." (Warrick, supra, 35 Cal.4th at p. 1021.)

Because the trial court erred by denying defendant's pretrial Pitchess motion in its entirety without the required in camera review, we conditionally reverse his judgment of conviction and remand the matter to resolve the issue of prejudice as follows: (1) The trial court must conduct an in camera inspection of the requested personnel records for relevance; (2) if the trial court's inspection on remand reveals no relevant information, the trial court must reinstate the judgment of conviction; and (3) if the inspection reveals relevant information, the trial court must order disclosure to defendant, allow him an opportunity to demonstrate prejudice and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed. If defendant is unable to show any prejudice, the conviction and sentence are to be reinstated. (People v. Gaines (2009) 46 Cal.4th 172, 181.)

2. The Trial Court Failed to Pronounce Sentence on the Petty Theft Conviction

Apparently relying on the minute order of the sentencing hearing and the abstract of judgment, defendant contends and the People acknowledge the trial court violated section 654 by not imposing and staying the sentence for petty theft (the lesser included offense of robbery) on count 1 (People v. Bernal (1994) 22 Cal.App.4th 1455, 1458). The parties would be correct had the trial court actually imposed sentence on count 1. However, the record reflects the trial court failed to orally pronounce sentence on defendant's petty theft conviction. Although a conflict between the oral pronouncement of a sentence as reflected in the reporter's transcript will generally control over a conflicting statement in the clerk's transcript (In re Merrick V. (2004) 122 Cal.App.4th 235, 249), this rule does not apply when there is no oral pronouncement of any kind as to a sentence. Accordingly the reference by the minute order and abstract of judgment to a concurrent sentence cannot be reconciled with the court's failure to pronounce sentence.

DISPOSITION

The judgment is conditionally reversed. On remand the trial court is to conduct an in camera review of the requested personnel records, as identified in this opinion, for relevance. If that review reveals no relevant information, the trial court shall reinstate defendant's original judgment of conviction and sentence, with one exception. If reinstated, the original judgment shall be modified to impose and stay the sentence on defendant's conviction for petty theft.

If the in camera review reveals relevant information, the trial court must order disclosure, allow defendant an opportunity to demonstrate prejudice and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed. If defendant is unable to show any prejudice, the original judgment is to be reinstated, with the sentence modified as stated above. In all other respects the orders of the trial court and defendant's conviction are affirmed.

We concur:

PERLUSS, P. J.

JACKSON, J.

This copy provided by Leagle, Inc.