Opinion
B228623 Los Angeles County Super. Ct. No. VA086577
09-19-2011
THE PEOPLE, Plaintiff and Respondent, v. HUGO IVAN SANCHEZ, Defendant and Appellant.
Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. Reversed and remanded.
Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
This is Hugo Ivan Sanchez's third appeal following his conviction for assault with a firearm and shooting at an occupied vehicle. We have twice remanded the case for the trial court to conduct in camera reviews of the personnel records of two Bell Gardens police officers involved in the investigation of the crimes for which Sanchez was convicted. Unfortunately, we must remand the case yet again for the trial court to fully comply with its obligations under Evidence Code sections 1043 and 1045 and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
PROCEDURAL BACKGROUND
Sanchez was convicted by a jury of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and shooting at an occupied vehicle (Pen. Code, § 246). The jury also found true related firearm-use and criminal street gang enhancements. Sanchez was sentenced to an aggregate state prison term of 40 years to life.
In his initial appeal we rejected Sanchez's argument his identification as the shooter by two of his victims was made under unduly suggestive circumstances, his challenges to the admissibility and sufficiency of testimony regarding the criminal street gang allegations and his contention he had received ineffective assistance from his trial counsel. (People v. Sanchez (Feb. 2, 2009, B197613 [nonpub. opn.].) However, we agreed the trial court had improperly denied Sanchez's motion for discovery of personnel records of Bell Gardens Police Detectives Michael Cox and Mark Cobian under Evidence Code sections 1043 and 1045 and Pitchess, supra, 11 Cal.3d 531 to the extent it sought relevant material responsive to allegations of dishonesty and improper coaching of witness testimony (phrased in the motion as "acts involving . . . falsification of testimony, fabrication of evidence, false police reports [or] perjury"). We conditionally reversed the judgment and remanded for the trial court to conduct in camera review of the requested personnel records for relevance.
Following an in camera review on August 3, 2009, the trial court found there was no discoverable material to be provided to the defense and reinstated the judgment. Sanchez appealed and requested we review the in camera proceedings to determine whether the court had properly concluded there was no discoverable material to which he was legally entitled.
The sealed record of the in camera proceedings contained a detailed description of the documents in Detective Cox's personnel files, but there was nothing in the record to indicate the court had also reviewed the personnel files of Detective Cobian, as we had directed. Accordingly, although we concluded the trial court's order complied with all statutory and common law discovery requirements with respect to Detective Cox (see Mooc v. Superior Court (2001) 26 Cal.4th 1216, 1229 (Mooc)), we again conditionally reversed the judgment and remanded the matter for an in camera review of Detective Cobian's personnel records. (People v. Sanchez (April 20, 2010, B218326) [nonpub. opn.].)
Following this second remand, after indicating it had inadvertently failed to realize Sanchez's discovery motion was directed to two officers, on September 30, 2010 the trial court conducted an in camera hearing to review the personnel files of Detective Cobian. As reflected in the court's minute order, Captain Jeffrey Travis was sworn in as the custodian of records for the City of Bell Gardens Police Department, and Captain Travis stated there were no negative items in Cobian's personnel file. The court then reinstated the judgment. Sanchez has appealed, asking that we independently review the sealed transcript of the in camera hearing to determine if the trial court followed the proper procedure for reviewing documents and if all relevant documents to which he was legally entitled were produced.
DISCUSSION
The sealed transcript of the most recent in camera hearing—less than two pages long—discloses that little more was done by the trial court than is reflected in the September 30, 2010 minute order. The court placed Captain Travis under oath and asked if he had reviewed Detective Cobian's personnel file. Travis responded he had. The court then asked if Travis had found anything that the court should review, and Travis responded, "Nothing at all." After confirming that answer, the court made no further inquiry and did not review any documents. This brief interchange failed to satisfy the court's minimum obligations under Pitchess, supra, 11 Cal.3d 531, and Mooc, supra, 26 Cal.4th 1216 to ensure Sanchez received relevant discovery materials while protecting Cobian's right of privacy.
The trial court in this case, in fact, committed essentially the same procedural errors as had been committed by the trial court in Mooc: "[I]t failed to make any record of what files, records, or documents [the custodian of records for the police department] had provided the court. Whether [the custodian] brought to the court for review Officer Garcia's complete personnel file . . . or some other set of documents is unknown. The trial court made no log or index of the documents it reviewed. If the court asked [the custodian] whether any documents were included in Garcia's complete personnel file but not presented to the court, there is no evidence of such questioning . . . ." (Mooc, supra, 26 Cal.4th at p. 1228.)
Penal Code section 832.8 defines peace officer personnel records as "any file maintained under the individual's name by his or her employing agency and containing records relating to any" of a list of enumerated categories of information, including "[e]mployee advancement, appraisal, or discipline" and "[c]omplaints or investigations of complaints, concerning an event or transaction in which he or she participated . . . and pertaining to the manner in which he or she performed his or her duties." (Pen. Code, § 832.8, subds. (d), (e).) Those records all may be kept in files labeled "personnel file," but they may also be maintained in administrative files under a variety of other names, including internal affairs files, human resources files or risk management files. (See Pen. Code, § 832.5, subd. (b) [complaints and reports or findings relating to complaints shall be retained for at least five years in the peace officer's "general personnel file or in a separate file designated by the department or agency as provided by department or agency policy"].)
It is the trial court's obligation to ensure through appropriate questioning that the custodian has produced all potentially responsive documents, beginning with an inquiry into where the custodian has searched and a description of the nature of the information typically found in each different set of files. If some of those files were not provided to the court, the custodian should be asked to explain that decision. (See Mooc, supra, 26 Cal.4th at p. 1229.) Simply asking whether the custodian has reviewed the officer's "personnel file," without more, is inadequate.
We are also concerned by the fact the trial court apparently did not inspect the personnel file Captain Travis brought with him to court, let alone examine individual documents in that file. To be sure, "[d]ocuments clearly irrelevant to a defendant's Pitchess request need not be presented to the trial court for in camera review." (Mooc, supra, 26 Cal.4th at p. 1229.) But the trial court, not the custodian of records, must make the decision whether potentially responsive documents should be produced to the defendant. (Ibid.) Given the sworn declaration of defense counsel that he was "personally aware of numerous acts of moral turpitude on the part of Det. Cobian in my experience as both a criminal defense attorney and civil rights plaintiff's attorney," it would have been far better for the court itself to determine that the file presented (even assuming it was complete) contained, "No complaints. No discipline. Nothing but commendations." Moreover, whether or not responsive material exists and is provided to defense counsel, the court should make a record of the documents it has examined: "If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of documents it considered, or simply state for the record what documents it examined." (Mooc, at p. 1229; see People v. Prince (2007) 40 Cal.4th 1179, 1285-1286 [trial court stated for record documents it had examined before concluding "there was not a single item indicating that [the officer] ever had suffered discipline for any reason"].) "It is for the court to make not only the final evaluation but also a record that can be reviewed on appeal." (People v. Guevara (2007) 148 Cal.App.4th 62, 69.)
Accordingly, we conditionally reverse the judgment and remand the matter for a further in camera review of Detective Cobian's complete personnel records, as those records are defined by Penal Code section 832.8, to determine if there is any relevant material responsive to Sanchez's allegations of "falsification of testimony, fabrication of evidence, false police reports [or] perjury." If such documents exist, they must be provided to Sanchez; and the court must then conduct additional proceedings to determine whether the erroneous denial of Sanchez's discovery motion constituted prejudicial error. (See People v. Gaines (2009) 46 Cal.4th 172, 180, 182 ["the proper remedy when a trial court has erroneously rejected a showing of good cause for Pitchess discovery and has not reviewed the requested records in camera is not outright reversal, but a conditional reversal with directions to review the requested documents in chambers on remand"; "[t]o obtain relief, then, a defendant who has established that the trial court erred in denying Pitchess discovery must also demonstrate a reasonable probability of a different outcome had the evidence been disclosed"].)
DISPOSITION
The judgment is conditionally reversed. On remand the trial court is to conduct a full in camera review of Detective Mark Cobian's personnel records for relevance, as set forth in this opinion. If that review reveals no relevant information, the trial court shall reinstate Sanchez's original judgment of conviction and sentence. If that review reveals relevant information, the trial court must order disclosure, allow Sanchez an opportunity to demonstrate prejudice and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed. If Sanchez is unable to show any prejudice, the original judgment is to be reinstated.
PERLUSS, P. J.
We concur:
WOODS, J.
ZELON, J.