People v. Rose ( 2014 )

Filed 5/29/14
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A135974
v.
CAMERON ROSE, (Alameda County
Super. Ct. No. 168323)
Defendant and Appellant.
Cameron Rose hit an Oakland police officer with a folding chair during a
confrontation between officers and participants in a “teepee vigil” on Frank Ogawa Plaza
(the plaza), and he was arrested about a month later. He was charged with two felony
counts arising out of the folding-chair incident: resisting an executive officer and assault
with a deadly weapon on a peace officer. He was also charged with one misdemeanor
count arising out of his subsequent arrest: resisting, obstructing, or delaying a peace
officer.1 On the charges arising out of the folding-chair incident, a jury convicted Rose
of resisting an executive officer and acquitted him of felony assault, instead convicting
him of the lesser included offense of misdemeanor assault on a peace officer under
section 241, subdivision (c). On the charge arising out of Rose’s subsequent arrest, the
jury was unable to return a verdict, and a mistrial was declared.
*
This opinion is certified for publication with the exception of part II.A. (California
Rules of Court, rules 8.1105(b) and 8.1110.)
1
The first felony charge was brought under Penal Code section 69, the second felony
charge was brought under Penal Code section 245, subdivision (c), and the misdemeanor
charge was brought under Penal Code section 148, subdivision (a)(1). All further
statutory references are to the Penal Code unless otherwise noted.
1
On appeal, Rose argues that the trial court improperly (1) denied his Pitchess2
motion for discovery of the personnel files of several police officers; (2) denied his
motion to compel the prosecution to run rap sheets3 of the officers who testified against
him; and (3) imposed a probation condition prohibiting him from entering the plaza and a
small area around it. We reject Rose’s claims, except we conditionally reverse the
judgment and remand for limited further Pitchess proceedings involving one officer.
I.
FACTUAL AND
PROCEDURAL HISTORY
In late November 2011, the City of Oakland issued a permit authorizing a teepee
vigil on the plaza. The vigil was closely associated with Occupy Oakland, a protest
movement. The permit authorized placing a teepee on the plaza, but it also prohibited a
variety of activities, such as serving food and storing items. The permit was renewed a
number of times over the next month, and it was in effect on December 30, 2011.
While in the plaza around 11:30 a.m. on December 30, Captain Jeffrey Israel
noticed that various items, including bedding, clothing, coolers, and chairs, were blocking
the walkways. He spoke to Naomi Reagan, a person associated with the vigil. Acting on
directions from the chief of police, Captain Israel informed Reagan that all items not
allowed by the permit had to be removed by 2:00 p.m. that day. Reagan asked for more
time to comply, but Captain Israel insisted that the items had to be gone by 2:00 p.m.
After overhearing the conversation between Reagan and Captain Israel, a group of men,
including Rose, yelled at Captain Israel and approached him aggressively. Captain Israel
left, and the men eventually stopped shouting.
Around 2:00 p.m., a group of approximately 20 officers arrived at the vigil area.
Many unpermitted items were still scattered around, and Sergeant Bernard Ortiz believed
this violated the Oakland Municipal Code’s prohibition against “minor encroachments
without a permit.” He ordered his officers to begin writing citations for the infractions.
2
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
3
The term “rap sheet” is a colloquialism for record of arrests and prosecution.
2
One of the officers, Officer Marcos Campos, thought that Carly Bate, a vigil
participant, was violating the Oakland Municipal Code because “[s]ome of her property
was [protruding] onto the walkway of [the p]laza,” even though she began moving it after
officers said they were going to start writing citations. She refused to give Officer
Campos her identification or her name and date of birth. Bate began to walk away, and
Officer Campos believed she was trying to flee and therefore subject to arrest.4 He tried
to handcuff her but was unsuccessful because she was “fla[il]ing her arms.” He then felt
someone else tug on his arm, and the handcuffs fell to the ground. An officer standing
next to Officer Campos, Officer C. O’Connor,5 grabbed Bate’s other arm and handcuffed
her.
Another officer present at the scene, Officer Patrick Gerrans (P. Gerrans),6
corroborated Officer Campos’s testimony. He testified that he and the other officers had
been briefed that the vigil participants had been warned to remove their things from the
plaza and that they should cite the participants who refused to comply. He testified that
he observed Officer Campos, who was about six feet away, trying to get Bate’s
identification while Bate argued with him. Officer P. Gerrans saw Bate begin to walk
away and then saw Officer Campos grab and “hold[] on to . . . Bate, which [Officer
P. Gerrans] recognized as a detention.” Officer P. Gerrans also saw Bate begin to move
her arms in an attempt to resist being handcuffed.
Officer P. Gerrans and Sergeant Ortiz testified that the confrontation escalated as
Bate was being restrained. They saw another woman, Tiffany Tran, intervene in the
scuffle between Officer Campos and Bate. They both saw Tran grab Officer Campos
from behind, and Officer P. Gerrans saw Tran grab Bate and try to pull her away from
4
Testimony was presented that although a person generally is not subject to arrest for
committing an infraction, an arrest may be proper if the person refuses to cooperate with
the citation process.
5
Officer O’Connor did not testify at trial, and his full name does not appear in the record.
6
We refer to this officer by his initial to avoid confusion because his brother, Officer
Robert Gerrans (R. Gerrans), is mentioned later in the opinion.
3
Officer Campos. Officer P. Gerrans responded by grabbing Tran’s left arm, and Sergeant
Ortiz responded by grabbing her right arm. Another bystander, Phillip Boswell, then
“grabbed on to . . . Tran and tried to pull her away from” the officers. Boswell attempted
to escape, and Sergeant Ortiz followed him.
While Officer P. Gerrans was still holding Tran’s arm, intending to handcuff her,
he was struck from behind. He felt a “dull thud to the middle part of [his] back” and “a
sharp pain near the bottom of [his] head.” He turned around and saw Rose pull a “steel
folding chair . . . toward [Rose’s] body, . . . [¶] . . . and throw it on the ground.” Officer
P. Gerrans testified that when he saw Rose with the chair, “it became very clear” that
Rose had hit him with it because the impact felt like a large, “hard object,” not a punch.
Rose then picked up another “identical” chair “like a baseball player would hold up a bat,
like they’re getting ready to hit a pitch,” and he threw it at Officer P. Gerrans’s legs and
fled. Neither Sergeant Ortiz nor Officer Campos, the only other officers present during
the incident who testified at trial, witnessed Rose’s attack on Officer P. Gerrans.
An arrest warrant was issued for Rose, and approximately a month later he was
arrested by Officer Mario Bonilla. Rose’s alleged actions during the arrest by Officer
Bonilla formed the basis of the misdemeanor charge of resisting, obstructing, or delaying
a peace officer. We do not discuss the facts surrounding the arrest because they are
irrelevant to this appeal in light of the mistrial declared on this charge.
Three rulings by the trial court—two before the trial and one after—give rise to
Rose’s appeal. First, Rose challenges the court’s denial of his Pitchess motion. The
pretrial motion requested discovery of information in the personnel files of Officers
P. Gerrans, Bonilla, R. Gerrans, O’Connor, and Campos. The court summarily denied
the motion as to all the officers except P. Gerrans. It then conducted an in camera review
of selected documents from Officer P. Gerrans’s personnel file and determined that none
of the documents were subject to disclosure.
Rose also challenges the denial of his pretrial motion to compel the prosecution to
run a rap sheet for every police witness. Although the prosecution acknowledged it had a
duty to disclose any material information about an officer’s criminal history that a rap
4
sheet would reveal, a representative from the Alameda County District Attorney’s office
testified that the office had an alternative procedure for ensuring that such information
was identified and turned over to the defense. The trial court denied Rose’s motion on
the basis that the court could not compel the prosecution to obtain information about
officers’ criminal history in a particular manner.
The final ruling Rose challenges involves a probation condition. After Rose was
convicted, the trial court suspended imposition of his sentence and granted probation for
five years. In doing so, the court imposed a condition that Rose stay out of an area of
downtown Oakland that includes the plaza and City Hall (the stay-away condition). After
Rose filed a motion challenging the stay-away condition, the court significantly reduced
the restricted area but refused to strike the condition entirely because the court found it
was necessary for Rose’s successful completion of probation.
Rose timely appealed.
II.
DISCUSSION
A. Further Pitchess Proceedings Are Required as to Officer P. Gerrans, but
the Trial Court’s Denial of Rose’s Pitchess Motion as to the Remaining
Officers Was Harmless.
Rose’s Pitchess motion sought “discovery as to prior acts of fabrication and/or
misstatement of facts[,] . . . the fabrication of charges and/or evidence[,] and the
authoring [of] or acquiescing to false or misleading police reports” by Officers
P. Gerrans, Bonilla, R. Gerrans, O’Connor, and Campos. The motion also sought
“discovery as to any acts of aggressive behavior, violence or attempted violence, and/or
excessive force or attempted excessive force” by Officer Bonilla and “discovery as to
acts involving illegal search and seizure” by Officers O’Connor and Campos. The trial
court summarily denied the motion as to all the officers except Officer P. Gerrans,
concluding that the discovery sought was “[n]ot material.” The court granted “[t]he
motion for discovery of reports of complaints regarding false reports, fabrication of
evidence, et cetera, as to Officer [P.] Gerrans. . . . That will sort of sweep up and include
5
any allegations of false arrest, making up charges, things like that, which basically
involve[] dishonesty and it’s the same thing as fabrication.”
In accordance with Pitchess procedures, a police records custodian brought to
court records from Officer P. Gerrans’s personnel file that the custodian considered
responsive to the discovery request. The custodian also provided a declaration that
generally described other documents in the personnel file that the custodian considered
nonresponsive to the request. After conducting an in camera review of the documents
provided, the trial court determined that none of them were subject to disclosure because
“[t]hey [did]n’t fall within the scope of the order.” It also ordered that the custodian’s
declaration be filed under seal.
Rose argues that the trial court erred by summarily denying his Pitchess motion as
to the officers other than Officer P. Gerrans, and he asks us to independently review the
in camera hearing at which the court evaluated the documents selected by the custodian
from Officer P. Gerrans’s personnel file. For reasons we explain below, we conclude that
(1) any error in the court’s denial of the Pitchess motion as to the officers other than
Officer P. Gerrans was harmless, and (2) the court properly exercised its discretion in
determining that the documents the custodian selected from Officer P. Gerrans’s
personnel file were not subject to disclosure. But we cannot tell from the record whether
the court reviewed the custodian’s declaration to ensure that the unselected documents
were not potentially relevant. Accordingly, we remand the matter for the court to
conduct such a review.
1. The procedure for considering Pitchess motions.
In Pitchess, supra, 11 Cal.3d 531, our state Supreme Court held that “a criminal
defendant [can] ‘compel discovery’ of certain relevant information in the personnel files
of police officers by making ‘general allegations which establish some cause for
discovery’ of that information and by showing how it would support a defense to the
charge [or charges] against him.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011,
1018-1019.) This holding was later codified in sections 832.5, 832.7, and 832.8 and
Evidence Code sections 1043 through 1047. (People v. Mooc (2001) 26 Cal.4th 1216,
6
1226 (Mooc); see also Warrick, at p. 1019.) Pitchess and the resulting statutory scheme
attempt to balance a criminal defendant’s “due process right to a fair trial” with an
officer’s “strong privacy interest in his or her personnel records.” (Mooc, at p. 1227.)
To obtain discovery of an officer’s personnel records, a defendant must file a
motion that includes an affidavit establishing “good cause” for discovery of the records.
(Evid. Code, § 1043, subd. (b)(3).) Establishing good cause requires that the affidavit
“propose a defense or defenses to the pending charges” and “articulate how the discovery
sought may lead to relevant evidence or itself may be admissible direct or impeachment
evidence [citations] that would support those proposed defenses.” (Warrick v. Superior
Court, supra, 35 Cal.4th at p. 1024.) A “showing of good cause is a ‘relatively low
threshold for discovery.’ ” (Id. at p. 1019.)
If the trial court concludes that good cause is lacking, the motion is summarily
denied. (See People v. Gaines (2009) 46 Cal.4th 172, 176.) But if good cause is found,
the court conducts an in camera hearing to review the officer’s personnel file. The
custodian of records must bring all “ ‘potentially relevant’ ” records for the court’s
review (Mooc, supra, 26 Cal.4th at p. 1226), be placed under oath (People v. White
(2011) 191 Cal.App.4th 1333, 1340), and state for the record whether other documents in
the personnel file “were deemed irrelevant or otherwise nonresponsive” and, if so, why.
(Mooc, at p. 1229.) The court then determines, subject to a variety of limitations and
exceptions, whether any of the proffered documents are relevant and should be disclosed.
(Ibid.; see Evid. Code, § 1045, subds. (a), (b).)
To enable appellate review, the trial court “should . . . make a record of what
documents it examined before ruling on the Pitchess motion,” whether by retaining
copies of the documents or identifying them for the record. (Mooc, supra, 26 Cal.4th at
p. 1229.) If the court does not make a record of the documents reviewed in camera or
does not review the documents at all, the judgment should be conditionally reversed and
the matter remanded for further Pitchess proceedings. (People v. Gaines, supra,46 Cal.4th at pp. 180-181.)
7
2. Any error in the trial court’s denial of the motion as to the officers
other than P. Gerrans was harmless.
We review the trial court’s summary denial of Rose’s motion as to the officers
other than P. Gerrans for an abuse of discretion. (People v. Lewis and Oliver (2006)
39 Cal.4th 970, 992.) To prevail, Rose must establish not only “good cause” for
discovery of the records but also “a reasonable probability of a different outcome had the
evidence been disclosed.” (People v. Gaines, supra, 46 Cal.4th at p. 182.) We conclude
that any error in the ruling was harmless under this standard.
In his briefing, Rose does not explain why the denial of the motion as to these four
officers was prejudicial. Instead, he apparently believes that if the denial was erroneous,
remand is required for an in camera review of the personnel files. But remand is not
automatic whenever a trial court errs by summarily denying a Pitchess motion: an
appellate court may deem the error harmless if, even assuming records favorable to the
defense may have been discovered, there is no reasonable probability that the favorable
evidence would have affected the trial’s outcome. (See, e.g., People v. Samuels (2005)
36 Cal.4th 96, 109-110 [even if trial court erred in summarily denying Pitchess request
for records of officer initially suspected in one of the crimes charged, “such error was
harmless in light of the extensive evidence linking defendant” to that crime].)
We conclude that any error in the trial court’s denial of the motion as to the
officers other than P. Gerrans was harmless. To begin with, the denial of the motion as to
Officer Bonilla was not prejudicial because, as the Attorney General points out, his
testimony was relevant only to the misdemeanor charge of resisting, obstructing, or
delaying a peace officer, and that charge resulted in a mistrial. Rose does not argue to the
contrary.
The denial of the motion as to Officer R. Gerrans also was not prejudicial. Rose’s
Pitchess affidavit stated that Officer R. Gerrans had written a police report in which he
corroborated Officer P. Gerrans’s statement that earlier on the day of the folding-chair
incident, Rose threatened to kill the officers’ “ ‘whole . . . family’ ” after learning they
were brothers. The affidavit claimed that the discovery sought was relevant to establish
8
that Rose did not make any such threat. Although we agree with Rose’s general point
that Pitchess discovery may be relevant to issues other than impeachment and may be
available even when an officer does not testify, in this instance, impeachment was the
only ground upon which discovery of Officer R. Gerrans’s records was sought, and no
evidence about the threat was introduced at trial.7 Whether Officer R. Gerrans lied about
the threat turned out to be inconsequential.
Similarly, the denial of the motion as to Officer O’Connor was not prejudicial
because he did not testify at trial, and the evidence relating to him was of minimal
relevance. Rose’s only reason other than impeachment for seeking discovery of Officer
O’Connor’s records was to establish that Bate’s arrest was unlawful, on the theory that
Officer O’Connor “fabricated a basis to arrest [her].” It is true that the lawfulness of
Bate’s arrest was at issue: the jury was instructed that whether Officer P. Gerrans “was
aware or reasonably should have been aware of facts and circumstances suggesting that
[Bate’s] arrest . . . was unlawful” could affect whether his attempt to arrest Tran was
“within the lawful scope of his duties”—an element of both felony charges.8 But Officer
O’Connor’s actions were of minimal relevance in determining the lawfulness of Bate’s
arrest. Officer Campos testified that he was the one who decided to cite Bate and then to
arrest her once she began to leave. According to Officer Campos, Officer O’Connor did
not talk to Bate and did not participate in her arrest until she was uncooperative and
Officer Campos dropped the handcuffs. In addition, Officer P. Gerrans could not recall
any participation by Officer O’Connor in Bate’s arrest and testified that at the time of the
incident he was focused on Bate and Officer Campos. Thus, any evidence of previous
false arrests by Officer O’Connor would not have borne on whether Bate’s arrest was
lawful or whether Officer P. Gerrans believed the arrest was lawful.
7
At the sentencing hearing, the parties stipulated “that Officer [P.] Gerrans be deemed to
have been called to testify and that he would have testified” about Rose’s threatening of
the brothers’ family and of other officers, and as discussed below, the trial court relied on
this evidence in setting the conditions of Rose’s probation.
8
Neither party challenges this instruction on appeal, and we express no opinion as to
whether it was legally correct.
9
Finally, the summary denial of the motion as to Officer Campos was also
harmless, although we acknowledge this issue is closer. Rose’s Pitchess affidavit sought
the records of Officer Campos to impeach him and to establish that he “fabricated a basis
to arrest . . . Bate.” Officer Campos’s testimony was relevant only to the issue of the
lawfulness of Bate’s arrest: he did not see anything that Tran or Rose did. Any evidence
used to impeach Officer Campos could conceivably affect the trial’s outcome only by
undermining his testimony about the lawfulness of Bate’s arrest, which the jury was
instructed was “relevant only to the extent Officer [P.] Gerrans was aware or reasonably
should have been aware of facts and circumstances suggesting that [Bate’s] arrest . . . was
unlawful.”
Officer Campos’s testimony about the lawfulness of Bate’s arrest was not
necessary to establish Rose’s guilt, however, in light of Officer P. Gerrans’s testimony.
The defense’s theory was that Bate’s arrest was unlawful because the Oakland Municipal
Code did not prohibit personal belongings on the plaza, Bate had already started to move
her items when Officer Campos tried to cite her, and Bate was under no obligation to
provide identification because the Penal Code allows a thumbprint or signature in lieu of
identification. But Officer Campos’s testimony did not bear on how to construe the
Municipal Code or Penal Code, and Officer Campos conceded that Bate was carrying
items when he tried to cite her. Nor was his testimony needed to establish that Officer
P. Gerrans was acting within the lawful scope of his duties. Rather, Officer P. Gerrans’s
testimony alone sufficed to establish probable cause for arresting Tran: Officer
P. Gerrans saw Officer Campos attempt to cite Bate, saw Bate attempt to leave and then
resist Officer Campos’s attempt to handcuff her, and saw Tran grab both Bate and Officer
Campos. Under these circumstances, we conclude that a more favorable verdict was not
reasonably probable even if Officer Campos’s testimony had somehow been discredited.
10
3. Remand is required for the limited purpose of reviewing the
declaration of the police custodian of records.
Rose requests that we review the transcript of the in camera hearing on Officer
P. Gerrans’s records to determine whether the trial court complied with the procedures
required under Mooc, supra, 26 Cal.4th 1216 and whether it erred by finding there were
no relevant documents to disclose. The Attorney General does not oppose the request.
Although the appellate record does not contain the records that the police
custodian of records brought to court, the trial court described them in detail at the in
camera hearing, and thus the transcript “is adequate for purposes of conducting a
meaningful appellate review” of the determination that the records were not subject to
disclosure. (People v. Myles (2012) 53 Cal.4th 1181, 1209.) As to these records, the
court followed the proper procedures. It swore in the custodian, reviewed the personnel
documents provided, and gave a detailed description of each of those documents for the
record. We conclude that the court did not abuse its discretion in determining that the
documents reviewed were not subject to disclosure.
But we are unable to determine whether the trial court reviewed and evaluated the
custodian’s declaration about the documents that were not brought to court. Under Mooc,
“[t]he custodian should be prepared to state in chambers and for the record what other
documents (or category of documents) not presented to the court were included in the
complete personnel record, and why those were deemed irrelevant or otherwise
nonresponsive to the defendant’s Pitchess motion.” (Mooc, supra, 26 Cal.4th at p. 1229.)
“In addition, if it is not readily apparent from the nature of the documents that they are
nonresponsive or irrelevant to the discovery request, the custodian must explain his or her
decision to withhold them. Absent this information, the [trial] court cannot adequately
assess the completeness of the custodian’s review of the personnel files, nor can it
establish the legitimacy of the custodian’s decision to withhold documents contained
therein.” (People v. Guevara (2007) 148 Cal.App.4th 62, 69.)
Here, some of the records not brought to court are described in the custodian’s
declaration in a manner that leaves us unable to conclude that they were necessarily
11
nonresponsive to Rose’s Pitchess motion. Since the record does not reflect that the trial
court reviewed the declaration or inquired into why these records were deemed
nonresponsive, we conclude that we must conditionally reverse the judgment and remand
for further proceedings. (See People v. Guevara, supra, 148 Cal.App.4th at p. 69
[conditionally reversing and remanding where record did not show “that the trial court
actually reviewed the list [of records deemed irrelevant] . . . submitted in support of the
custodian of record’s decision to produce no records for the court’s examination”].)
B. The Trial Court’s Refusal to Compel the Prosecution to Run Rap Sheets of
the Officer Witnesses Did Not Violate Due Process.
Rose argues that his convictions must be reversed because the trial court
improperly denied his motion to compel the prosecution to run rap sheets of the officer
witnesses. He contends that the court’s ruling denied him due process under Brady v.
Maryland (1963) 373 U.S. 83 (Brady) and under United States Supreme Court cases
invalidating “asymmetrical application of the rules of evidence.” We disagree with both
contentions.
Rose’s motion asked for the “felony record, or conduct amounting to moral
turpitude,” for “all police witnesses.” At the hearing on the motion, the trial court
construed the motion as a request for it to “order the District Attorney’s office to run
criminal [rap] sheets of prospective law enforcement witnesses in this matter.”9 The
People opposed the motion, and in doing so provided the court with “some background
for the respective position[s] of counsel” in the form of briefs from a writ proceeding in a
different case in which the People challenged an order requiring them “to run the [rap]
sheets of the relevant officers.”
Jeffrey Rubin, a member of the Alameda County District Attorney’s office’s
“Brady committee,” testified about the office’s procedures for ensuring that discoverable
information about police-officer witnesses is turned over to the defense. He explained
9
We are puzzled why Rose’s motion was so interpreted, given that it did not even
mention rap sheets. The prosecution never claimed that Rose was not entitled to the
information the motion sought (if any such information existed), and the trial court did
not so rule. The Attorney General, however, makes nothing of this discrepancy.
12
that the office “gather[s] information from a variety of different sources” about police
officers and compiles this information in a “database” that members of the Brady
committee consult when a prosecutor asks whether discoverable information exists about
a particular officer. Although Rubin agreed that rap sheets are generally within the
District Attorney’s office’s “constructive possession” and that information from an
officer’s rap sheet is discoverable if it is “relevant on the subject of credibility or some
other relevant issue,” he explained that the office policy was not to run a rap sheet as a
matter of course for every officer. He stated that his office believed the “mechanism” he
had described was “a more efficient . . . and more comprehensive . . . and . . . more
ethical way of ensuring that [it] get[s] this information to the [d]efense, and that
mechanism is not having to run a criminal history [rap] sheet for every officer in every
case every time we have to prosecute a case.”10
The trial court denied Rose’s motion. Although the court expressed doubt that the
District Attorney’s office’s procedure was “the most efficient” way of learning about
police officers’ criminal records and stated it “would run the [rap] sheets” if it were up to
the court, it characterized the practice described by Rubin as “a good faith effort [by] the
District Attorney’s office to provide this information.” The court ruled that due process
did not require it to “micromanage . . . [the District Attorney’s office’s] exercise of [its
Brady] obligation . . . [by] tell[ing it] exactly how [it] ha[d] to look [for the information],”
i.e., by ordering it to run rap sheets.
10
After ruling on the motion, the trial court permitted Rubin, for the purpose of making a
record, to provide additional testimony in camera about the particular ways in which the
District Attorney’s office acquires information about police officers.
13
1. The prosecution cannot be forced to comply with its Brady duty to
investigate in a particular manner.
Rose argues that the trial court abused its discretion in refusing to order the
prosecution to run the police officers’ rap sheets because “[t]he prosecution has a duty to
obtain the criminal history information contained in the rap sheets” under Brady, supra,
373 U.S. 83, and the District Attorney’s office’s procedures for acquiring evidence
favorable to the defense are inadequate. Although we confirm that the prosecution has a
duty under Brady to learn of material impeachment evidence within its actual or
constructive possession, we reject the contention that a defendant can force the
prosecution, through a discovery motion, to discharge this duty by running an officer’s
rap sheet.
Initially, we observe that Rose is not attempting to establish a traditional Brady
violation, nor could he. “ ‘There are three components of a true Brady violation: The
evidence at issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.’ ” (People v. Salazar (2005)
35 Cal.4th 1031, 1042-1043, quoting Strickler v. Greene (1999) 527 U.S. 263, 281-282.)
Here, there is no “evidence at issue” because Rose has failed to show that any of the
testifying officers have a criminal history. Mere speculation that such information might
exist and might not have been disclosed is insufficient to establish a violation of Brady.
(See People v. Mena (2012) 54 Cal.4th 146, 160 [“Brady merely serves ‘ “to restrict the
prosecution’s ability to suppress evidence rather than to provide the accused a right to
criminal discovery,” ’ ” italics in original].) And since Rose has not shown that any such
information exists, he has necessarily failed to show that it was favorable to him, that it
was suppressed, or that he suffered any prejudice.
Rather than asserting a traditional Brady claim, Rose instead argues that the trial
court wrongly denied his motion because he was entitled to compel the prosecution to
comply with its Brady duty to investigate possible exculpatory or impeachment evidence
in a particular manner: by running the officers’ rap sheets. We are not convinced.
14
A prosecutor’s duty under Brady, supra, 373 U.S. 83 has been summarized by our
state Supreme Court. “In Brady, the United States Supreme Court held ‘that the
suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.’ [Citation.] The high court has since
held that the duty to disclose such evidence exists even though there has been no request
by the accused [citation], that the duty encompasses impeachment evidence as well as
exculpatory evidence [citation], and that the duty extends even to evidence known only to
police investigators and not to the prosecutor [citation]. . . . In order to comply with
Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence
known to the others acting on the government’s behalf in the case, including the police.’
[Citations.]” (People v. Salazar, supra, 35 Cal.4th at p. 1042; see also In re Brown
(1998) 17 Cal.4th 873, 882 [prosecution has duty under Brady to learn of information that
is “ ‘readily available’ ” to it].) “ ‘Conversely, a prosecutor does not have a duty to
disclose exculpatory [or impeachment] evidence or information to a defendant unless the
prosecution team actually or constructively possesses that evidence or information. Thus,
information possessed by an agency that has no connection to the investigation or
prosecution of the criminal charge against a defendant is not possessed by the prosecution
team, and the prosecutor does not have the duty to search for or to disclose such
material.’ ” (In re Steele (2004) 32 Cal.4th 682, 697.)
The prosecution in this case therefore had a duty under Brady, supra, 373 U.S. 83to learn of any material impeachment information about the officer witnesses that was
within the prosecution’s constructive possession. “ ‘In general, impeachment evidence
has been found to be material where the witness at issue “supplied the only evidence
linking the defendant[] to the crime,” [citations], or where the likely impact on the
witness’s credibility would have undermined a critical element of the prosecution’s case,
[citations].’ ” (People v. Salazar, supra, 35 Cal.4th at p. 1050.) Although rap sheets
themselves are not discoverable (People v. Santos (1994) 30 Cal.App.4th 169, 177), some
information about a witness’s criminal history that is included on a rap sheet may meet
15
Brady’s standard of materiality depending on the circumstances of a given case. (See,
e.g., People v. Little (1997) 59 Cal.App.4th 426, 434 [prosecution has duty under Brady
“to disclose the felony convictions of all material prosecution witnesses if the record is
‘reasonably accessible’ ”].) We need not decide here whether such information about an
officer witness is necessarily within the prosecution’s constructive possession because the
prosecution conceded both that it had constructive possession of information on rap
sheets and that it had a corresponding duty of disclosure.
Even when material information is within the constructive possession of
prosecutors, Brady, supra, 373 U.S. 83 does not empower a defendant to compel the
precise manner by which prosecutors carry out their duty to learn of it. The trial court
here declined to order the prosecution to run the officer witnesses’ rap sheets, but it did
not deny that Rose was entitled to discovery of the criminal-history information sought.
Rose argues that the court abused its discretion because there was no showing that the
District Attorney’s procedure is “an adequate alternative means of obtaining the
information contained in the rap sheets,” but he provides no authority suggesting such a
showing is required.11 District attorneys need some mechanism for ensuring that they
learn of Brady material within their constructive possession. (See Giglio v. United States
(1972) 405 U.S. 150, 154 [recognizing prosecutors’ burden to learn of information within
their constructive possession and noting that “procedures and regulations can be
established to carry that burden and to insure communication of all relevant information
on each case to every lawyer who deals with it”].) But the choice of that mechanism is
within district attorneys’ broad “discretionary powers in the initiation and conduct of
11
In making his argument, Rose also cites state decisions which have held that under
some circumstances a defendant is entitled to discovery of information about a witness’s
criminal history to which the prosecution has access, including felony convictions (Hill v.
Superior Court (1974) 10 Cal.3d 812, 819-820), misdemeanor convictions (People v.
Santos, supra, 30 Cal.App.4th at pp. 178-179), and pending charges (People v. Coyer
(1983) 142 Cal.App.3d 839, 842). Like Brady, however, these cases require only that
certain information be provided to the defense, not that a particular method be used to
learn whether such information exists.
16
criminal proceedings,” which “extend from the investigation and gathering of evidence
relating to criminal offenses [citation], through the crucial decisions of whom to charge
and what charges to bring, to the numerous choices the prosecutor makes at trial
regarding ‘whether to seek, oppose, accept, or challenge judicial actions and rulings.’ ”
(People v. Eubanks (1996) 14 Cal.4th 580, 589.) As such, that choice “generally is not
subject to supervision by the judicial branch.” (People v. Birks (1998) 19 Cal.4th 108,
134.) Rose fails to persuade us that the court erred in declining to compel the prosecution
to run the officers’ rap sheets.
Although we conclude that defendants cannot use discovery motions to compel
prosecutors to run rap sheets, we point out that prosecutors who investigate witnesses’
criminal histories through mechanisms other than running rap sheets risk a future Brady
challenge if favorable information is later uncovered that would have been revealed on a
rap sheet. Prosecutors have the discretion to learn of evidence favorable to the defense
through the methods they consider to be appropriate, but a Brady claim may lie if a
defendant is prejudiced because a prosecutor failed to obtain favorable evidence that was
readily available by running a rap sheet. And this will be true regardless whether the
prosecutor acted in good faith or actually knew about the evidence that was not disclosed.
(Kyles v. Whitley (1995) 514 U.S. 419, 438; People v. Williams (2013) 58 Cal.4th 197,
256.) “If the suppression of evidence results in constitutional error, it is because of the
character of the evidence, not the character of the prosecutor.” (United States v. Agurs
(1976) 427 U.S. 97, 110.)
2. Rose has not established that an “asymmetrical application of the
rules of evidence” denied him due process.
Before trial, the People moved to be provided with the defense’s witness list, the
witnesses’ “names [and] dates of birth,” “and the opportunity to check [the witnesses’]
criminal records.” Characterizing the request as “essentially a request for a witness list,
and I think we have had that already,” the trial court granted the motion without objection
by Rose’s counsel. Rose argues that the court’s denial of his motion to compel the
prosecution to obtain the police officers’ rap sheets “while ordering the defense to
17
provide information needed to obtain the rap sheets of defense witnesses was the
functional equivalent of an asymmetrical application of the rules of evidence” and
violated due process. We disagree.
The gist of Rose’s argument is that he was “effectively precluded . . . from
impeaching the officers with prior criminal conduct” while the prosecutor was allowed to
obtain “similar impeachment evidence regarding defense witnesses.” But the parties
generally agree that Rose was entitled to receive information about the officers’ criminal
history. The prosecution never claimed that it had, or could have, impeachment
information that it was not required to disclose to Rose. Because there has been no
showing that the prosecution had access to any impeachment evidence that Rose did not
have access to, the decisions upon which Rose relies are distinguishable to the extent they
have any applicability at all. (See Pennsylvania v. Ritchie (1987) 480 U.S. 39, 42-43, 57
& fn. 14 [under Brady, defense entitled to disclosure of information in state agency’s
child-abuse investigation file where statute made file confidential but permitted
disclosure to “law-enforcement and judicial personnel”]; Green v. Georgia (1979)
442 U.S. 95, 97 [exclusion of hearsay statement in death-penalty trial violated due
process because it was “highly relevant to a critical issue in the punishment phase of the
trial, . . . and substantial reasons existed to assume its reliability,” including that the state
had introduced it in another trial]; Washington v. Texas (1967) 388 U.S. 14, 22 [rule
permitting accomplices to testify for prosecution but not defense violated right to
compulsory process].) We fail to see how the trial court’s refusal to force the prosecution
to run the officers’ rap sheets constitutes “an asymmetrical application of the rules of
evidence” that denied Rose due process.
C. The Stay-Away Probation Condition Was Narrowly Tailored and Designed
to Promote Rose’s Rehabilitation.
Finally, Rose argues that the stay-away probation condition is unreasonable and
unconstitutionally overbroad. We disagree and conclude that it was narrowly tailored to
promote Rose’s rehabilitation.
18
As orally pronounced by the trial court,12 this condition required Rose to “stay out
of an area in downtown Oakland. And that is completely out of it. It’s not lawful
business. It’s out of the area that is bounded by [Interstate] 980 on the west, Grand
Avenue on the north, 14th Street on the south, and Broadway on the east.” The court
reasoned, “I certainly understand Mr. Rose’s commitment to the issues that he and his
fellows were supporting that day, but in my view he has forfeited that right for the period
of his probation to be within that area. He can express his views on those issues
wherever he wants to anywhere else in the world, but for the period of probation[,] in
order to ensure successful completion of probation[,] he’s to stay out of that area.”
Rose moved to modify or strike the stay-away condition. He argued that it was
overbroad and unconstitutional because it restricted his right to travel and his ability to
engage in political activity in a large part of downtown Oakland. At the hearing on the
motion, the trial court modified the condition significantly. It reduced the stay-away area
by changing the western boundary to Clay Street and the northern boundary to 17th
Street, cutting the area to “about 15 percent of what it used to be.” And it permitted Rose
to pass through the prohibited area on certain modes of public transportation. As
modified, however, the condition still prevents Rose from going to City Hall and the
plaza.
Although the trial court agreed that the stay-away condition touched upon Rose’s
constitutional rights, the court disagreed that it “meaningfully hamper[ed] . . . those
rights.” It found that barring Rose from the stay-away area would help him avoid further
unlawful activity. In the stay-away area, Rose had physically assaulted Officer
P. Gerrans and, as we mentioned in the nonpublished portion of this opinion, had
threatened to kill the officer’s family and other police officers. The stay-away area was
the “focal point” of unrest during Occupy Oakland, and Rose’s offenses directly related
to his participation in that movement. The court was particularly concerned, in light of
12
We look at the trial court’s “more inclusive oral pronouncement” of the condition
because neither party argues that the court’s written probation order should control.
(People v. Freitas (2009) 179 Cal.App.4th 747, 750, fn. 2.)
19
Rose’s admitted mental illness, that Rose might be unable “to successfully complete
probation” if he were allowed in the stay-away area.
“In granting probation, courts have broad discretion to impose conditions to foster
rehabilitation and to protect public safety pursuant to . . . section 1203.1.” (People v.
Carbajal (1995) 10 Cal.4th 1114, 1120.) “[T]he trial court’s discretion, although broad,
nevertheless is not without limits: a condition of probation must serve a purpose
specified in the statute. In addition, . . . probation conditions which regulate conduct ‘not
itself criminal’ [must] be ‘reasonably related to the crime of which the defendant was
convicted or to future criminality.’ ” (Id. at p. 1121.)
When a probation condition imposes limitations on a person’s constitutional
rights, however, a stricter standard applies. (See People v. Olguin (2008) 45 Cal.4th 375,
379-380, 384.) Such a condition “ ‘must closely tailor those limitations to the purpose of
the condition to avoid being invalidated as unconstitutionally overbroad.’ ” (Id. at
p. 384.) “A court may not issue broad restraints on liberty that are completely unrelated
to the defendant’s crime, conduct[,] and future criminality, without a showing justifying
the need for the restriction.” (People v. Perez (2009) 176 Cal.App.4th 380, 384 (Perez).)
Although Rose does not clearly explain how the probation condition hampers the exercise
of his constitutional rights, we conclude that the condition is valid even under this stricter
standard.
Rose primarily relies on Perez, supra, 176 Cal.App.4th 380, in which the Court of
Appeal found unconstitutionally overbroad a probation condition that prohibited a
defendant convicted of robbery from attending any court hearing or being within 500 feet
of any court unless he was a defendant or under subpoena. (Id. at p. 382.) The Court of
Appeal agreed with the defendant that the condition was not narrowly tailored to promote
rehabilitation and that it unreasonably restricted his constitutional right to access the
courts and government offices. (Id. at p. 385.) It reasoned that “the prosecution did not
provide a rationale for the 500-foot court access restriction. It did not claim that Perez
had loitered on courthouse property, that he had threatened or would threaten witnesses,
or that his presence in a courthouse would incite violence.” (Id. at p. 384.) The court
20
struck the condition and remanded the matter to the trial court for it to “impose a
narrower condition if it deem[ed it] necessary.” (Id. at pp. 385-386.)
Perez, supra, 176 Cal.App.4th 380 is distinguishable. First, unlike in Perez, the
condition here was carefully designed to promote rehabilitation. The modified order
limited the condition to an area of approximately six square blocks that was the site of
Rose’s offenses and the “focal point” of Occupy Oakland. After considering Rose’s
volatile and criminal history at that specific location as well as his mental illness, the trial
court reasoned that restricting Rose from that small area would help him successfully
complete his probation. Although Rose contends that the court’s willingness to allow
him to participate in protest activity outside the stay-away area is inconsistent with its
reasoning, the court restricted Rose from only the specific area it found likely to trigger
his unlawful behavior, emphasizing the condition’s narrowness.
Second, in Perez, supra, 176 Cal.App.4th 380, the probation condition restricted
the defendant’s access to all courts even though his conviction was unrelated to
courthouse property or being near a courthouse. (Id. at p. 383.) The Court of Appeal
held that “broad and unnecessary exclusions from either government centers that invite
public participation or public places that contain parks and other public forums touch
upon other constitutionally protected interests” and “[u]nreasonable restrictions ‘on
access to public property’ contravene the First Amendment.” (Id. at p. 385, italics
added.) In contrast, the condition here restricts Rose only from a small portion of
Oakland directly related to the crimes he committed. It does not prevent him from
entering government buildings or participating in protests outside of that area.
Rose also cites In re White (1979) 97 Cal.App.3d 141, in which the Court of
Appeal granted relief to a defendant convicted of prostitution who, as a condition of her
probation, was restricted from three designated “ ‘map areas’ ” in Fresno at all times and
for any purpose. (Id. at pp. 143-144, 152.) The court held that the condition was
unreasonable because it was “so sweeping and so punitive that it [became] unrelated to
rehabilitation.” (Id. at pp. 147-148.) The court’s holding was based on the condition’s
restriction on the defendant’s constitutional right to travel. (Id. at pp. 150-151.) Rose
21
does not explain how the condition here impermissibly hampers his right to travel, and it
is hard to imagine how it might since the trial court modified the condition to allow him
to travel through the restricted area on certain modes of public transportation. We
conclude that the stay-away condition is narrowly tailored to its purposes and decline to
strike it.
III.
DISPOSITION
The judgment is conditionally reversed, and the matter is remanded to the trial
court with directions to hold another in camera hearing to review the declaration
submitted by the police custodian of records. The judgment shall be affirmed unless the
court finds that additional records should have been produced that contain discoverable
information and “ ‘there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.’ ” (People v.
Hayes (1990) 52 Cal.3d 577, 612.)
_________________________
Humes, J.
We concur:
_________________________
Ruvolo, P. J.
_________________________
Rivera, J.
22
Trial Court: Alameda County Superior Court
Trial Judge: Honorable Thomas Reardon
Counsel for Appellant: Robert Bryzman, under appointment by the First
District Appellate Project
Counsel for Respondent: Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Gerald A. Engler,
Senior Assistant Attorney General, Jeffrey M.
Laurence, Supervising Deputy Attorney General,
Arthur Beever, Deputy Attorney General
23