People v. Daniel CA2/1 ( 2023 )

Filed 8/7/23 P. v. Daniel CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B318222
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA480875)
v.
DANTE DANIEL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert C. Vanderet and Richard S.
Kemalyan, Judges. Affirmed.
Robert L. Hernandez, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant Dante Daniel was convicted of one count of
second degree robbery and one count of assault with a deadly
weapon. The trial court imposed a prison sentence of 25 years to
life under the “Three Strikes” law.
On appeal, Daniel argues the trial court erred in failing to
instruct the jury sua sponte on theft as a lesser included offense
of robbery. Daniel further contends the court erred in denying
part of his Pitchess1 motion for discovery of police officer
personnel files, and he asks us to examine independently the
personnel files that the court had reviewed in camera during the
proceedings below.
First, we conclude that regardless of whether the trial court
should have instructed the jury sua sponte on theft, any such
error was harmless. The jury necessarily found that Daniel took
the victim’s property by force or fear, and thereby perpetrated a
robbery and not merely a theft, when the jury found true an
allegation that Daniel personally used a deadly and dangerous
weapon to commit that offense.
Second, the trial court did not err in denying Daniel’s
Pitchess motion as to the personnel records of three police officers
because he did not offer any evidence showing that the police
report Daniel submitted with his motion relied upon any
statements made by these three officers. Thus, the court did not
abuse its discretion in deciding to review in camera only
personnel records belonging to the officer who authored the police
report.
1 (Pitchess v. Superior Court (1974) 11 Cal.3d 531(Pitchess).)
2
Lastly, although our independent review of the personnel
records examined by the trial court in camera substantiates the
court’s ruling that the documents do not contain discoverable
information, the court should have asked the custodian of records
to identify which documents from the police officer’s personnel
file had not been provided to the court and why the custodian had
withheld them. Nevertheless, we conclude that this error is
harmless because Daniel does not contest the Attorney General’s
assertion that Daniel’s trial testimony was largely consistent
with the testimony of the officer who wrote the police report.
We thus affirm the judgment.
PROCEDURAL BACKGROUND2
On October 24, 2019, the People filed an information
charging Daniel with one count of second degree robbery, in
2 Our description of the trial court proceedings and of the
evidence presented below is derived in part from admissions
made by the parties in their appellate briefing, and from
assertions made by the Attorney General to which Daniel
does not respond in his reply. (See Williams v. Superior Court
(1964) 226 Cal.App.2d 666, 668, 674 [criminal case in which the
Court of Appeal stated: “ ‘An express concession or assertion in a
brief is frequently treated as an admission of a legal or factual
point, controlling in the disposition of the case.’ ”]; Artal v. Allen
(2003) 111 Cal.App.4th 273, 275, fn. 2 [“ ‘[B]riefs and
argument . . . are reliable indications of a party’s position on the
facts as well as the law, and a reviewing court may make use of
statements therein as admissions against the party.’ ”]; Reygoza
v. Superior Court (1991) 230 Cal.App.3d 514, 519 & fn. 4
(Reygoza) [criminal case in which the Court of Appeal assumed
that an assertion made by respondent was correct because the
“defendant did not dispute respondent’s claim in his reply”];
Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89–90
3
violation of Penal Code3 section 211 (count 1); and one count of
assault with a deadly weapon, in violation of section 245,
subdivision (a)(1) (count 2). The information alleged that in the
commission of count 1, Daniel “personally used a deadly and
dangerous weapon(s), to wit, [a] KNIFE AND/OR SCISSORS,
said use not being an element of the above offense, within the
meaning of . . . [s]ection 12022(b)(1).”
Also on October 24, 2019, Daniel formally waived his right
to counsel, elected to represent himself, and pleaded not guilty to
both counts.
As we explain in greater detail in Discussion, part B.1,
post, the trial court granted in part and denied in part Daniel’s
pretrial Pitchess motion and, upon conducting an in camera
review of certain police officer personnel records, the court found
that these documents did not contain any discoverable material.
A jury found Daniel guilty on both counts, and it also found
true the allegation that Daniel personally used a deadly and
dangerous weapon in the commission of the second degree
robbery. Prior to the sentencing hearing and at Daniel’s request,
the trial court revoked Daniel’s pro per status and appointed
counsel to represent him. The trial court later sentenced Daniel
for the robbery conviction to state prison for 25 years to life under
the Three Strikes law. The court imposed a sentence of 25 years
to life for the assault conviction as well, but the court ordered the
(Rudick) [concluding that the appellants made an implicit
concession by “failing to respond in their reply brief to the
[respondent’s] argument on th[at] point”].) We summarize only
those facts pertinent to our disposition of this appeal.
3 Undesignated statutory citations are to the Penal Code.
4
sentence to run concurrent to the prison term imposed for the
robbery conviction. Daniel timely appealed the judgment.
FACTUAL BACKGROUND
We summarize only those portions of (a) evidence offered by
the People and (b) Daniel’s trial testimony that are relevant to
this appeal.
1. The People’s evidence
On September 1, 2019, C.V. stopped near the corner of
Alvarado Street and Reservoir Street to speak with one of his
friends. While C.V. was sitting at a table at that location, he
observed that Daniel was arguing with an older man who went
by the name “Pinky.” C.V. told Daniel to leave Pinky alone.
Daniel then walked toward C.V., told C.V. not to meddle, and
attempted to strike C.V. with a closed fist. C.V. ducked, thereby
successfully evading the punch, and then grabbed Daniel by the
neck and pulled him to the ground.
Next, C.V. returned to his seat, and Daniel walked away to
a table that was approximately 10 feet away from C.V. Moments
later, C.V. realized that Daniel was attacking him. C.V. felt some
wetness on the back of his head. C.V. looked at Daniel and saw
what appeared to be two knives in Daniel’s hand. C.V. realized
that he had been stabbed multiple times.
C.V. grabbed a bicycle-locking chain that was on C.V.’s
bicycle and swung it. Although the chain made contact with
Daniel’s body, Daniel was protected by a type of hard plastic gear
that is worn by motorcyclists.
At that point, Daniel grabbed C.V.’s backpack, which
contained C.V.’s wallet, identification, paperwork, and a shirt
from C.V.’s place of employment. C.V. did not attempt to prevent
5
Daniel from taking the backpack because C.V. was afraid of being
stabbed again. After Daniel left the area with the backpack, C.V.
contacted the police.
Subsequently, Officer Gabriel Rivas arrived at the scene.
C.V. spoke to Officer Rivas about the attack. A witness to the
altercation told Officer Rivas that he knew the identity of the
attacker and where the attacker was located. The witness
directed the officer to a tent pitched under a bridge. After Officer
Rivas asked whether anyone was inside the tent, Daniel exited
the tent.
C.V. later arrived at the tent and identified Daniel as the
man who attacked him. During a search of the tent, Officer
Rivas discovered several items belonging to C.V., to wit, a
backpack, a wallet, an identification card, and a shirt from C.V.’s
place of employment. The tent also contained two pairs of
scissors and certain motorcycle gear.
2. Daniel’s testimony
Daniel saw a backpack near some benches where people
were sitting. Daniel believed the backpack had been abandoned
and could be claimed by anyone. Daniel placed the backpack
inside his own bag.
Daniel saw a man called Pinky sitting at a table with three
bottles of beer. As Daniel walked over to Pinky, Daniel
accidentally knocked over one of the beer bottles. Daniel tried to
grab the beer bottle, but in doing so, he accidentally knocked over
other beer bottles. At that point, Pinky began yelling.
A group of people then approached Daniel. One of the
members of the group struck Daniel from behind, and C.V.
grabbed Daniel by the neck. Daniel escaped from C.V.’s grip,
went over to Daniel’s bag, and grabbed a pair of scissors. After
6
Daniel obtained the scissors, a member of the group swung a
chain at Daniel, and another member threw something at Daniel.
Although Daniel did not intend to stab C.V. with the scissors, the
scissors may have scratched C.V.’s head during the altercation.
The altercation eventually concluded, and Daniel thereafter
withdrew to his tent. Daniel changed his clothes and began
looking through the items that he had found. When a police
officer later questioned him, Daniel falsely told the officer that he
had been home all evening. Daniel also falsely told the officer
that all of the property in the tent belonged to him. Daniel lied to
the police officer because he did not want to “ ‘snitch’ ” on the
people who had attacked him.
DISCUSSION
A. Any Error In Failing To Instruct the Jury Sua
Sponte on Theft Was Harmless
“ ‘ “It is settled that in criminal cases, even in the absence
of a request, the trial court must instruct on the general
principles of law relevant to the issues raised by the evidence.
[Citations.] . . .” . . . [Citation.] That obligation has been held to
include giving instructions on lesser included offenses when the
evidence raises a question as to whether all of the elements of the
charged offenses were present [citation], but not when there is no
evidence that the offense was less than that charged.
[Citations.]’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154
(Breverman).)
“[T]he existence of ‘any evidence, no matter how weak’
will not justify instructions on a lesser included offense, but such
instructions are required whenever evidence that the defendant
is guilty only of the lesser offense is ‘substantial enough to merit
7
consideration’ by the jury. [Citations.] ‘Substantial evidence’ in
this context is ‘ “evidence from which a jury composed of
reasonable [persons] could . . . conclude[ ]” ’ that the lesser
offense, but not the greater, was committed.” (Breverman, supra,19 Cal.4th at p. 162.) “In deciding whether evidence is
‘substantial’ in this context, a court determines only its bare legal
sufficiency, not its weight.” (Id. at p. 177.)
“ ‘Theft is a lesser included offense of robbery . . . .’
[Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
“Section 211 defines robbery as ‘the felonious taking of personal
property in the possession of another, from his person or
immediate presence, and against his will, accomplished by means
of force or fear.’ Robbery is . . . ‘ “ ‘a species of aggravated
larceny.’ ” ’ [Citation.] Theft by larceny may be committed
without force or the threat of violence and may be completed
without the victim ever being present. [Citation.] To elevate
larceny to robbery, the taking must be accomplished by force or
fear and the property must be taken from the victim or in his
presence.” (People v. Gomez (2008) 43 Cal.4th 249, 254 (Gomez).)
“[R]obbery, like larceny, is a continuing offense. All the
elements must be satisfied before the crime is completed. . . .
[¶] . . . [Theft by l]arceny requires the taking of another’s
property, with the intent to steal and carry it away. [Citation.]
‘Taking,’ in turn, has two aspects: (1) achieving possession of the
property, known as ‘caption,’ and (2) carrying the property away,
or ‘asportation.’ [Citations.] Although the slightest movement
may constitute asportation [citation], the theft continues until
the perpetrator has reached a place of temporary safety with
the property [citation].” (See Gomez, supra, 43 Cal.4th at
pp. 254–255, fn. omitted.)
8
Daniel contends that his “conviction for robbery must be
reversed because the trial court failed to instruct sua sponte on
the lesser included offense of theft.”4 (Boldface & capitalization
omitted.) Specifically, he argues, “[T]he court erred by not
instructing on theft because the evidence could support a jury
finding that [Daniel] did not use force or fear when he took
[C.V.’s] property.”5 As we explain below, we conclude that even if
arguendo the trial court erred in failing to instruct on theft sua
sponte, any such error was harmless.
As a preliminary matter, Daniel asserts, “Whether the trial
court’s error is analyzed under the harmless beyond a reasonable
doubt standard of Chapman v. California (1967) 386 U.S. 18, or
the reasonable probability of a more favorable outcome standard
set forth in People v. Watson (1956) 46 Cal.2d 818, [Daniel] was
prejudiced here.” The Chapman standard of prejudice governs
4 Although there are forms of theft other than theft by
larceny, e.g., theft by embezzlement and theft by false pretenses
(see Gomez, supra, 43 Cal.4th at p. 255, fn. 4), Daniel does not
claim the trial court should have instructed the jury on any type
of theft other than theft by larceny.
5 Daniel claims in his opening brief that although C.V.
“testified that he let [Daniel] keep the bag because he was afraid
and [Daniel] had a knife [citation], . . . [C.V.] did not testify about
where the bag was located, whether [Daniel] took it from his
person, or whether [Daniel] even knew that that bag belonged to
[C.V.]” Insofar as Daniel asserts there was substantial evidence
that Daniel did not take C.V.’s property from his person or
immediate presence with the intent to steal and carry it away, we
decline to reach that issue because he fails to cogently raise it.
(See People v. Evans (2011) 200 Cal.App.4th 735, 756, fn. 12
[declining to address an argument that a party failed to support
adequately].)
9
“federal constitutional error[s]” whereas Watson applies to “state
law error[s].” (See In re Christopher L. (2022) 12 Cal.5th 1063,
1083.) Daniel thus intimates that the federal standard of
prejudice potentially could apply to his claim of instructional
error, although his position appears somewhat equivocal.
Our Supreme Court has squarely held “the failure to
instruct sua sponte on a lesser included offense in a noncapital
case is, at most, an error of California law alone, and is thus
subject only to state standards of reversibility.” (Breverman,
supra, 19 Cal.4th at p. 165; see id. at pp. 169, 172 [“[W]e affirm
that the rule requiring sua sponte instructions on all lesser
necessarily included offenses supported by the evidence derives
exclusively from California law. . . . [¶] . . . [¶] [F]ederal law has
no effect on the appropriate standard of California appellate
review when, in a noncapital case, the defendant challenges his
otherwise valid conviction of a charged offense on grounds the
trial court failed in its sua sponte duty under California law to
provide instructions, correct and complete, on all lesser included
offenses . . . .”].) We are bound by Breverman’s holding on this
point. (See People v. Perez (2020) 9 Cal.5th 1, 13 [“ ‘The decisions
of this court are binding upon and must be followed by all the
state courts of California.’ ”].)
Under the Watson standard, we must determine whether it
is “ ‘reasonably probable’ the defendant would have obtained a
more favorable outcome had the [alleged] error not occurred.”
(See Breverman, supra, 19 Cal.4th at p. 178, quoting Watson,
supra, 46 Cal.2d at p. 836.) “[T]he appellant bears the burden to
make an ‘affirmative showing’ ” of the existence of such a
reasonable probability. (See Conservatorship of Maria B. (2013)
218 Cal.App.4th 514, 532–533; see ibid. [noting that this
10
harmless error standard “applies in both criminal and civil
cases”].) “Appellate review under Watson . . . . focuses not on
what a reasonable jury could do, but what such a jury is likely to
have done in the absence of the error under consideration.”
(Breverman, at p. 177.)
With these principles in mind, we assess whether the
absence of an instruction on theft by larceny prejudiced Daniel.
Of critical importance to our prejudice analysis is the jury’s
finding that “in the commission . . . of [the second degree
robbery], . . . Daniel[ ] personally used a deadly and dangerous
weapon, to wit: scissors, said use not being an element of the
offense, within the meaning of . . . section 12022(b)(1) . . . .”6 To
render this finding, the jury must have concluded that, “ ‘ “during
the crime[,] . . . the defendant himself . . . intentionally displayed
in a menacing manner or struck someone with an instrument
capable of inflicting great bodily injury or death.” ’ [Citation.] . . .
[Citation.]” (See People v. Beck and Cruz (2019) 8 Cal.5th 548,
629–630.) Put differently, the jury must have found that during
the commission of the robbery, Daniel attacked C.V. with the
scissors or threatened to do so, meaning he engaged in such
conduct to “ ‘achiev[e] possession of the property’ ” or at some
other point prior to his “ ‘escape with the loot . . . .’ ” (See Gomez,
supra, 43 Cal.4th at pp. 255, 257.) Because a “taking” is
accomplished by force or fear for the purposes of robbery under
6 Although the verdict indicates the jury found Daniel
personally used a deadly and dangerous weapon “in the
commission and attempted commission” of the second degree
robbery, the jury found that Daniel did in fact commit (and
did not merely attempt to commit) the second degree robbery.
(Italics added.)
11
these circumstances, the jury necessarily found this essential
element of robbery in rendering its verdict vis-à-vis the
section 12022, subdivision (b)(1) allegation.7
“ ‘It is well established that “[e]rror in failing to instruct the
jury on a lesser included offense is harmless when the jury
necessarily decides the factual questions posed by the omitted
instructions adversely to defendant under other properly given
instructions.” ’ [Citations.]”8 (People v. Wang (2020)
46 Cal.App.5th 1055, 1072.) Here, because the jury’s finding that
Daniel personally used a deadly and dangerous weapon in
committing the robbery is inconsistent with Daniel’s claim that
the jury could have found he did not employ force or fear in
taking C.V.’s property, we conclude there is no reasonable
probability that Daniel would have obtained a more favorable
outcome if the jury had been instructed on theft by larceny.
7 (See Gomez, supra, 43 Cal.4th at p. 258 [“[I]f the ‘force or
fear’ element comes into play not during caption but during
asportation, the crime is still a robbery. . . . [R]obbery is a
continuing offense. If the aggravating factors are in play at any
time during the period from caption through asportation, the
defendant has engaged in conduct that elevates the crime from
simple larceny to robbery.”].)
8 Daniel does not claim the trial court failed to instruct the
jury properly on the robbery charge or on the section 12022,
subdivision (b)(1) allegation. Accordingly, we presume the trial
court instructed the jury properly on those issues. (See People v.
Giordano (2007) 42 Cal.4th 644, 666 [“On appeal, we presume
that a judgment or order of the trial court is correct, ‘ “[a]ll
intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be
affirmatively shown.” ’ ”].)
12
B. The Trial Court Did Not Commit Reversible Error In
Ruling on Daniel’s Pitchess Motion
Before addressing the substance of Daniel’s challenges to
the trial court’s rulings on his Pitchess motion, we recite certain
general principles applicable to our analysis.
“In Pitchess[, our high court] held that a criminal
defendant’s fundamental right to a fair trial and an intelligent
defense in light of all relevant and reasonably accessible
information entitled a defendant, who was asserting self-defense
to a charge of battery on a police officer, to discovery of police
personnel records.” (City of San Jose v. Superior Court (1993)
5 Cal.4th 47, 52 (City of San Jose), citing Pitchess, supra,
11 Cal.3d at pp. 535–537.) “In 1978, the California Legislature
codified the holding of Pitchess by enacting Penal Code
sections 832.7 and 832.8, as well as Evidence Code sections 1043
through 1045.[9] [Citations.] To initiate discovery, the defendant
must file a motion supported by affidavits showing ‘good cause for
the discovery,’ first by demonstrating the materiality of the
information to the pending litigation, and second by ‘stating upon
reasonable belief’ that the police agency has the records or
information at issue. [Citation.] This two-part showing of good
cause is a ‘relatively low threshold for discovery.’ [Citation.] [¶]
If the trial court finds good cause for the discovery, it reviews the
pertinent documents in chambers and discloses only that
9 “Although the Legislature’s 1978 enactment of this
statutory scheme superseded the court’s holding in Pitchess
[citation], discovery motions and hearings conducted pursuant to
Evidence Code sections 1043 through 1046 are still commonly
referred to as Pitchess motions and hearings.” (Riske v. Superior
Court (2016) 6 Cal.App.5th 647, 657, fn. 5 (Riske).)
13
information falling within the statutorily defined standards of
relevance.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011,
1019 (Warrick).)
To satisfy the materiality prong of the good cause standard,
a defendant must “establish not only a logical link between the
defense proposed and the pending charge, but also . . . articulate
how the discovery being sought would support . . . a defense or
how it would impeach [an] officer’s version of events.” (See
Warrick, supra, 35 Cal.4th at p. 1021.) To show the discovery
requested supports a defense or impeaches an officer’s account,
“the defendant must present . . . a specific factual scenario of
officer misconduct that is plausible when read in light of the
pertinent documents.” (See id. at pp. 1025–1026.) For the
purposes of this inquiry, “a plausible scenario of officer
misconduct is one that might or could have occurred” and is
“internally consistent and supports the defense proposed to the
charges.” (See id. at p. 1026.) “Th[e] factual scenario, depending
on the circumstances of the case, may consist of a denial of the
facts asserted in [a] police report.” (See id. at pp. 1024–1025.)
“The trial court does not determine whether a defendant’s version
of events, with or without corroborating collateral evidence, is
persuasive—a task that in many cases would be tantamount to
determining whether the defendant is probably innocent or
probably guilty.” (Id. at p. 1026.)
Insofar as the trial court’s decision on a Pitchess motion
“is based on an interpretation of the statutes governing such
discovery, our review is de novo.” (Riske, supra, 6 Cal.App.5th at
p. 657.) Otherwise, that ruling is “reviewed for abuse of
discretion.” (See ibid.) “The discretion exercised by a court ‘ “is
not a capricious or arbitrary discretion, but an impartial
14
discretion, guided and controlled in its exercise by fixed legal
principles. It is not a mental discretion, to be exercised ex gratia,
but a legal discretion, to be exercised in conformity with the spirit
of the law and in a manner to subserve and not to impede or
defeat the ends of substantial justice.” [Citation.] An exercise of
discretion is subject to reversal on appeal where no reasonable
basis for the action is shown. [Citation.]’ [Citation.]” (People v.
Perez (2015) 233 Cal.App.4th 736, 742.)
1. The trial court’s rulings on Daniel’s Pitchess motion
Prior to trial, Daniel filed a motion, in pro per, under
Pitchess for discovery of the personnel files of four police officers:
(1) Officer Rivas; (2) Officer Martinez; (3) Officer Mejia; and
(4) Officer Potts. Attached to Daniel’s motion were his
declaration and a police report written by Officer Rivas that
documents his investigation of this case.
At the hearing on Daniel’s Pitchess motion, the trial court
found that Daniel had “set forth specific factual scenarios which
he alleges establish a plausible factual foundation of officer
misconduct in three separate areas: [¶] The first is ‘the arrival
of the officers at the tent.’[10] [¶] The second is the location of the
purported victim’s wallet and identification. [¶] And third is the
area of essentially a general denial that the victim saw the
defendant punch an elderly man.” The court found that the first
area “does not provide a plausible factual foundation for officer
misconduct that arises to the level that there must be an in
10 In his declaration, Daniel attested that although the
police report claims that officers knocked on his tent, they did not
knock but instead drew their weapons and ordered him to exit
the tent.
15
camera hearing.” According to the trial court, “The second [area
identified by Daniel] does not deny the presence of the wallet in
the tent nor the identification in the tent, just that
the identification was not in the wallet but was hidden by
Mr. Daniel . . . when the officers arrived.” Regarding the third
area, the court remarked, “[E]ven if [Daniel’s allegations relating
thereto] are true, it does not establish officer misconduct” because
“[t]he officer would just be reporting what they were told by the
victim.”
The trial court thereafter stated: “[T]he only officer that
wrote a report in this case was Officer Rivas. And the court
believes out of an abundance of caution that the motion should be
granted solely as to Officer Rivas who authored the report and
solely for the category of false report writing, all within five years
of the date of the incident.”11 Next, the court held an in camera
hearing at which only the court, the court reporter, and a
custodian of records for the Los Angeles Police Department were
present. After the in camera hearing concluded, the trial court
informed Daniel and counsel for the People that the court had
“conducted the in camera review of the records [the court]
11 After the October 16, 2020 hearing on Daniel’s Pitchess
motion, the Legislature amended Evidence Code section 1045,
subdivision (b) to remove a provision barring discovery of
“[i]nformation consisting of complaints concerning conduct
occurring more than five years before the event or transaction
that is the subject of the litigation in aid of which discovery or
disclosure is sought.” (Compare Stats. 2002, ch. 391, § 2
[indicating this text appeared in Evid. Code, § 1045, subd. (b)],
with Stats. 2021, ch. 402, § 1 [removing this text from Evid.
Code, § 1045, subd. (b)].) Daniel does not assert that this
legislative amendment applies retroactively to his case.
16
indicated [it] would review” but “found no discoverable
information to be turned over.”
On appeal, Daniel maintains the trial court erred in
denying his Pitchess motion as to Officers Martinez, Mejia, and
Potts, and by restricting “the scope of the in camera review . . . to
only instances of false report writing” instead of expanding the
scope of review to “instances of untruthfulness generally.”
Further, Daniel “requests that this court conduct an independent
review of the reporter’s transcript of the in camera hearing and of
the actual documents presented to the trial court to determine
whether any documents were incorrectly withheld.”
As explained below, we conclude the trial court did not
abuse its discretion by (1) granting Daniel’s Pitchess motion as to
only Officer Rivas’s personnel records concerning false report
writing, and (2) denying his request (a) for discovery of the
personnel files of the other three officers and (b) to broaden the
scope of discovery to include allegations of untruthfulness
generally. Further, the trial court did not err in finding that the
records produced by the custodian at the in camera hearing were
not discoverable. On the other hand, the appellate record lacks
sufficient detail for us to determine (a) which records from
Rivas’s personnel file the custodian had declined to produce at
the hearing, and (b) why the custodian did not submit those
records for the trial court’s review. Nevertheless, we conclude
this error was harmless.
17
2. The trial court did not abuse its discretion by denying
Daniel’s Pitchess motion for personnel records of
officers other than Officer Rivas or by limiting
discovery to instances of false report writing
According to Daniel, he correctly stated in his declaration
that “a ‘substantial issue in the trial of this case will be the
credibility’ of the four named officers, who are ‘witnesses for the
prosecution on issues related to the encounter with [Daniel] and
witnesses, including their demeanor, what was observed in
[Daniel’s] possession, and any statements made by [Daniel].” He
argues that “[t]hough it is true that the [police] report identifies
Officer Rivas as the author, the report is written in such a way
that it is unclear which officers took which of the actions specified
in the report and which facts in the report came from which
officers,” and that, “[b]ecause [Daniel] could not tell from the
police report which police officer did or said which things, [he]
successfully established a logical nexus between all of them and
his theory of the case.” Daniel seems to also contend that
because the credibility of all four officers was supposedly at issue,
the trial court should have widened “the scope of the in camera
review . . . to instances of untruthfulness generally,” rather than
merely “instances of false report writing . . . .”
Daniel directs us to certain passages from the police report
to support his assertion that this document does not identify
clearly which officers took each of the actions described in that
document. He points out that the report states, “Officers
conducted a parole compliance check inside of [Daniel’s] tent.”
Daniel cites a passage that provides, “We . . . located the Victim’s
green back pack, black wallet containing his Mexican consular ID
card, a work shirt that read ‘Glen Oaks Car Wash’ and other
18
misc. paperwork containing his personal information.” Further,
Daniel directs us to a portion of the report that relates, “Officers
had the Victim look inside the tent and identify what items were
his. The Victim identified his green back pack, black wallet
containing his Mexican consular ID card, a work shirt that read
‘Glen Oaks Car Wash’ and other misc. paperwork containing his
personal information.”
Daniel fails to establish the trial court abused its discretion
in narrowing the scope of Pitchess discovery to instances of false
report writing on the part of Officer Rivas. We acknowledge that
Daniel did not have to “present a factual scenario that is
reasonably likely to have occurred[,] . . . persuasive or even
credible.” (See People v. Thompson (2006) 141 Cal.App.4th 1312,
1318 (Thompson).) Yet, Daniel cannot establish the requisite
“ ‘ “plausible factual foundation” ’ for [his] defense” “based on a
showing that is merely imaginable or conceivable and, therefore,
not patently impossible.” (See id. at pp. 1316, 1318.) Put
differently, under the governing standard, “the word ‘plausible’ ”
is not “synonymous with ‘possible[.]’ ” (See id. at p. 1318.) This
limitation on discovery is consistent with the Legislature’s intent
in codifying the Pitchess procedure—(1) to “carefully
balance . . . the peace officer’s just claim to confidentiality[ ] and
the criminal defendant’s equally compelling interest in all
information pertinent to the defense,” and (2) “to protect [officer
personnel] records against ‘fishing expeditions’ conducted by
defense attorneys . . . .” (See City of San Jose, supra, 5 Cal.4th at
pp. 51–54; see also People v. Lofchie (2014) 229 Cal.App.4th 240,
251 [“ ‘ “We must select the construction [of a statute] that
comports most closely with the apparent intent of the
19
Legislature, with a view to promoting rather than defeating the
general purpose of the statute . . . .” ’ ”].)
Thompson is instructive here. In that case, the defendant
was apprehended by police officers after he sold cocaine base
to an undercover narcotics officer. (See Thompson, supra,
141 Cal.App.4th at p. 1315.) The defendant “moved for discovery
of personnel records and other information covering 11 . . .
[police] officers and detectives who were involved in the drug
transaction.” (See ibid.) “In addition to [the undercover narcotics
officer to whom the defendant sold the cocaine base], the motion
named six officers who saw the transaction, two detectives who
monitored [the narcotics officer’s] wire, the arresting officer who
found two $5 bills in [the defendant’s] possession, and an officer
who identified the bills as [the undercover narcotics officer’s] buy
money.” (See id. at pp. 1315–1316.) In support of the motion,
defense counsel submitted a declaration denying that his client
sold narcotics to the undercover officer and claiming that “[w]hen
‘[the] defendant was stopped by the police and once they realized
he had a prior criminal history they fabricated the alleged events
and used narcotics already in their possession and attributed
these drugs to the defendant.’ ” (See id. at p. 1317.) Defense
counsel further stated that “[t]he charges ‘[were] a fabrication
manufactured by the officers to avoid any type of liability for
their mishandling of the situation and to punish the defendant
for being in the wrong area, at the wrong time and for having a
prior criminal history. . . .’ ” (Ibid.)
The trial court denied the defendant’s Pitchess motion, and
the defendant was later convicted for the sale of cocaine base.
(See Thompson, supra, 141 Cal.App.4th at pp. 1314, 1316.) On
appeal, the reviewing court rejected the defendant’s claim that
20
the trial court erroneously denied his Pitchess motion. (Id. at
p. 1316.) The Thompson court concluded that the defendant’s
“factual showing . . . [was] not plausible by any rational
standard,” given he was “asserting that, because he was standing
at a particular location, 11 police officers conspired to plant
narcotics and recorded money in his possession, and to fabricate
virtually all the events preceding and following his arrest.” (See
id. at pp. 1315, 1318.) Although the Court of Appeal recognized
that this “scenario is [not] totally beyond the realm of possibility,”
it explained that courts are permitted to “apply common sense in
determining what is plausible, and to make determinations based
on a reasonable and realistic assessment of the facts and
allegations.” (See id. at pp. 1318–1319.)
The defendant in Thompson was alleging that all of the
11 police personnel subject to his Pitchess motion had fabricated
some aspect of the People’s account of the drug transaction. (See
Thompson, supra, 141 Cal.App.4th at p. 1318.) Even though the
parties did not dispute that all 11 officers and detectives “were
involved in the drug transaction” (e.g., “two [of the] detectives . . .
monitored [the undercover officer’s] wire”), the mere “possibility”
that all of them were lying fell short of satisfying the “ ‘Pitchess
materiality standard . . . .’ [Citation.]” (See Thompson, at
pp. 1315–1316, 1318–1319.)
Here, because Daniel’s case for establishing the materiality
of Martinez’s, Mejia’s, and Potts’s personnel files is even weaker
than that of the defendant in Thompson, a fortiori, the trial court
did not abuse its discretion in denying Daniel’s request for
discovery of the personnel files belonging to these three officers.
As we noted above, Daniel concedes the police report is “written
in such a way that it is unclear which officers took which of the
21
actions specified in the report and which facts in the report came
from which officers.” (Italics added.) Put differently, Daniel does
not know which, if any, of these three officers supposedly
fabricated the information provided in the police report. Further,
because Daniel’s contention that the scope of discovery should not
have been limited to “false report writing” seems to be premised
on his assertion that the trial court ought to have granted the
motion as to all four officers, we also reject his claim that “the
scope of the in camera review” should have extended to
“instances of untruthfulness generally.”
Additionally, the record strongly suggests that Daniel could
have discovered which officers had relayed each detail included in
the report. For instance, Daniel intimates in his declaration that
officers’ body worn camera video captured their interview with
C.V., and the police report shows that the officers’ body worn
cameras may have been switched on during their encounter with
Daniel. Daniel does not claim he was unable to discover each
officer’s precise involvement in the events described in the report,
for example, by obtaining footage from body worn cameras. Thus,
Daniel presumably had an opportunity to procure evidence
necessary to establish good cause for an in camera review of
Martinez’s, Mejia’s, and Potts’s personnel files. Because he failed
to do so, the trial court did not abuse its discretion in denying
part of Daniel’s Pitchess motion.12
12 Daniel further contends that the trial court’s partial
denial of his Pitchess motion “violated [his] Fifth, Sixth, and
Fourteenth Amendment rights to a fair trial, to due process, to
present a defense, and to confront and cross-examine his
accusers.” Insofar as Daniel intends to raise any claims
independent of his contention the trial court abused its discretion
in denying his Pitchess motion, he waives any such claims of
22
3. Although the trial court erred in failing to ascertain
which documents the custodian withheld and why the
official had withheld them, that error was harmless
We have examined independently the personnel records
belonging to Officer Rivas that the trial court reviewed in
camera. (See People v. Samuels (2005) 36 Cal.4th 96, 110
(Samuels) [indicating that an appellate court may examine
independently the personnel records reviewed by the trial court].)
We conclude the court did not abuse its discretion in finding that
none of the documents produced by the custodian of records
concerned alleged instances of false report writing occurring
within five years of the incident in question.
That the trial court did not err in its review of the
documents produced by the custodian, however, is not the end of
our analysis. “ ‘Although the custodian of records was required to
submit for review only those documents that were potentially
responsive to the discovery request, our Supreme Court has
directed that “[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.” [Citation.] . . . [¶] Accordingly, in cases . . . where the
custodian of records does not produce the entire personnel file for
error by failing to support them with argument and citation to
authority. (See People v. Stanley (1995) 10 Cal.4th 764, 793
[“ ‘[E]very brief should contain a legal argument with citation of
authorities on the points made. If none is furnished on a
particular point, the court may treat it as waived, and pass it
without consideration.’ ”].)
23
the court’s review, he or she must establish on the record what
documents or category of documents were included in the
complete personnel file. 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 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. . . .’ [Citation.]” (People v. Wycoff (2008)
164 Cal.App.4th 410, 414–415.)
The record for the instant case indicates that the custodian
did not submit the entirety of Officer Rivas’s personnel file to the
trial court. Further, the custodian did not identify which
documents, or categories of documents, from the personnel file
had been withheld from the court, nor did this official explain
why he believed the omitted documents fell outside the scope of
discovery permitted by the court.
Pursuant to an order from this court, the trial court later
settled the record on appeal to include all the documents it had
reviewed at the in camera hearing. Although the sealed
transcript for that subsequent hearing shows the trial court once
again examined the custodian in the course of settling the record,
the custodian did not identify which documents from Officer
Rivas’s personnel file had been withheld.
Daniel argues that if we determine the trial court
committed error in the course of conducting the in camera
hearing, we should utilize “the remedy . . . set forth in People v.
Gaines (2009) 46 Cal.4th 172.” “That is, if materials were
improperly withheld, [Daniel’s] conviction should be conditionally
24
reversed and the matter should be remanded to the trial court to
order disclosure[, citation; t]hen, the trial court on remand must
allow [Daniel] an opportunity to demonstrate prejudice from the
failure to disclose the relevant information[, citation; and], . . . if
the trial court determines that there is a reasonable probability
the original outcome would have been different had the
information been disclosed, the trial court should order a new
trial.” (Citing Gaines, at p. 181.)
The Attorney General counters that “[Daniel] will be
unable to establish a reasonable probability that he would have
obtained a better outcome if he had access to . . . information” in
Rivas’s personnel file that should have been disclosed. The
Attorney General maintains, “[T]he credibility of Officer Rivas
had little significance because [Daniel] testified at trial in a
manner that was consistent with that of Officer Rivas.
Specifically, [Daniel] acknowledged that the officers found [him
in] possession of [C.V.’s] property. Although [Daniel] claimed
that he believed the property had been abandoned and that he
was the victim of an attack by [C.V.’s] group, his testimony
contradicted that of [C.V.] rather than Officer Rivas or any other
officer . . . .”
In his reply brief, Daniel does not contest the Attorney
General’s assertion that Daniel cannot establish that any error
prejudiced him because Officer Rivas’s credibility had “little
significance . . . .” Instead, Daniel reiterates his request that we
examine the materials reviewed by the trial court, and points out
that he took steps to ensure “the record [was] settled and
augmented to include the Pitchess materials that were actually
reviewed by the trial court.”
25
We acknowledge the Gaines court approved of an appellate
disposition that conditionally reversed a judgment and “ ‘allow[ed
a defendant] an opportunity to demonstrate prejudice’ ” if the
trial court “determine[d] on remand that relevant information
exist[ed] and should [have been] disclosed.” (See Gaines, supra,46 Cal.4th at pp. 176, 178, 181.) Nevertheless, by failing to
challenge the Attorney General’s contention that any failure to
disclose information in Officer Rivas’s personnel file was
harmless, Daniel tacitly concedes that point. (See Reygoza,
supra, 230 Cal.App.3d at p. 519 & fn. 4; Rudick, supra,
41 Cal.App.5th at pp. 89–90.)
Under these circumstances, we conclude that “ ‘[t]he futility
and expense’ ” of conditionally reversing the judgment and
remanding the matter for further proceedings “ ‘militates
against’ ” that disposition. (See People v. Ledbetter (2014)
222 Cal.App.4th 896, 904; ibid. [noting that “ ‘[t]he law neither
does nor requires idle acts[,]’ ” and holding that “[t]he power to
order remand ‘for such further proceedings as may be just under
the circumstances’ ” under section 1260 “permits us to not
remand to secure the same goal, i.e., justice under the
circumstances”]; Gaines, supra, 46 Cal.4th at p. 181 [“ ‘It is
settled that an accused must demonstrate that prejudice resulted
from a trial court’s error in denying discovery.’ ”]; cf. Samuels,
supra, 36 Cal.4th at pp. 109–110, 138 [affirming a judgment on
the ground, inter alia, that “even if the trial court erred because
defendant made a showing of good cause in support of [her
Pitchess] request [citation], such error was harmless in light of
the extensive [trial] evidence”].)
26
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
WEINGART, J.
27