Filed 6/23/16 P. v. Boatwright CA2/3

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                            B260654

         Plaintiff and Respondent,                                     (Los Angeles County
                                                                       Super. Ct. No. BA412916)
         v.

GARY DEAN BOATWRIGHT,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
William N. Sterling, Judge. Affirmed.

         Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and
Andrew S. Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.



                                            _____________________
       Appellant Gary Dean Boatwright appeals from the judgment entered following his
convictions by jury on two counts of assault with a deadly weapon. (Pen. Code, § 245,
subd. (a)(1).) The court suspended imposition of sentence and placed appellant on
probation for three years on the condition, inter alia, he serve 365 days in local custody
(time served). The appeal arises out of appellant’s “Notice of Motion and Pretrial
Pitchess1 Motion” (pretrial Pitchess motion) seeking to discover complaints of alleged
misconduct in the personnel files of three police officers (Los Angeles Police Officer
Joseph Dudas, Los Angeles Police Officer Quintero, and Los Angeles Police Detective
M. Ceja). Consistent with Evidence Code section 1045, subdivision (b)(1) (excluding
discovery of complaints more than five years before the event), the trial court reviewed
personnel records, in camera, for complaints against Dudas and Quintero lodged within
the past five years. We find no error in the court’s in camera review or its limitations on
the categories of documents and information properly discoverable under Pitchess.
       Appellant’s pretrial Pitchess motion also rested on Brady.2 Although requests for
Brady information are not governed by the five-year limitation in Evidence Code section
1045, subdivision (b)(1), the trial court’s failure to conduct an in camera review of
records beyond the five-year limit was not error because appellant only requested in
camera review of information under section 1045, subdivision (a) and, in any event, he
failed to make the requisite prima facie showing that the officers’ files contained
information that was “material” under Brady. We affirm.




1
       Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
2
       Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215] (Brady).


                                             2
                                 FACTUAL SUMMARY
1. Officer Dudas Was the Only Police Officer Who Testified for the People at Trial.
       At the time of the June 25, 2013 incident leading to his arrest, appellant was
homeless, living in a tent among others occupying an encampment on the sidewalk near
Third and Main. At trial, the People called, as witnesses, the alleged victims (two
Business Improvement District (BID) safety officers working in downtown Los Angeles);
a third-party witness who saw the alleged assault from across the street (Oscar Lopes);
and Dudas, one of the arresting Los Angeles police officers.
       Joshua Quezada, a BID safety officer in downtown Los Angeles, was the first
officer to contact appellant on the day in question. Quezada testified that about 9:30 a.m.
on June 25, 2013, he noticed appellant’s tent was blocking the sidewalk. Quezada
approached and asked appellant to pick up his belongings so the area could be cleaned.
Appellant was agitated and hostile. Appellant was also holding a knife with an
approximate eight-inch blade. Quezada testified the knife later confiscated from
appellant’s tent appeared to be the knife wielded by appellant on the day in question.
       According to Quezada, appellant lunged at Quezada’s stomach, saying, “I’m going
to cut you.” Quezada tried to retreat but appellant grabbed Quezada’s bicycle, preventing
him from leaving. Appellant jabbed the knife toward Quezada several times before
releasing the bicycle. Quezada fled on his bicycle to an area of safety, then telephoned
his supervisor, Raul Lua, to let him know what happened. Later that day, Quezada told
police what happened. Quezada testified the police report accurately memorialized what
he told the police.
       BID Safety Officer Raul Lua, the supervisor who received Quezada’s call,
testified that when he arrived at the encampment, he approached appellant and politely
asked how he was doing. Appellant spoke aggressively to Lua saying, “Leave me alone
or I’m going to cut you like I cut your cousin.” Lua testified he retreated after appellant
pointed a knife at him and advanced towards him. Later that day, Lua told police what
happened.



                                             3
       A man who was working across the street from the encampment, Oscar Lopes,
testified he was cleaning a garden near Third and Main that morning. Lopes looked
across the street and saw appellant chasing a BID officer. Lopes heard appellant say,
“I’m sick and tired of you guys coming and waking us up every morning.” Lopes noticed
appellant was carrying what looked like a machete. Lopes was concerned appellant was
going to stab the BID officer. Lopes testified appellant was very angry and chased the
BID officer away. When another BID officer arrived, appellant became angry and said,
“I’m sick and tired of this.” Lopes saw appellant chase the second BID officer away,
thrusting the knife and nearly stabbing the officer.
       Lopes testified a police officer took a statement from him. A police report
correctly reflected Lopes told an officer that Lopes “went to investigate and observed the
suspect with a large knife in hand, in a threatening manner approaching one of the
victims.” Lopes similarly confirmed a second statement he made to Ceja as reflected in
Ceja’s police report.
       One of the three police officers who were the subject of appellant’s pretrial
Pitchess motion testified at trial. Dudas testified he and his partner, Quintero, arrived at
the encampment about 10:00 a.m. and appellant was present. Dudas identified
photographs of the encampment at trial. He also testified he recovered a knife from
appellant’s tent. Dudas produced the knife at trial and testified its blade was about eight
inches long. When Dudas interviewed Quezada and Lua, they identified the knife as the
one appellant had pointed at them.
       Dudas testified there were several other people present in the area at the time of
the arrest but none indicated they saw anything. Dudas also testified Quintero spoke to a
person across the street. When asked whether Dudas’s “partner went and looked for
[witnesses],” Dudas testified his partner “was speaking with the witness.” Dudas also
testified there were “quite a few” potential witnesses, “people living on both sides . . . as
well as people over by the tree.”




                                              4
2. Appellant Did Not Call Any of the Three Officers to Testify at Trial.
       Appellant testified in his own defense at trial. Because he was representing
himself, the testimony was in the form of a narrative. Appellant explained that before the
BID officers arrived, he and others were preparing to cook eggs using a two-burner stove
chained against the fence. He testified, “And so I was – we were gathering . . . cooking
utensils together. And I was going to be cutting the bread and veggies and doing some of
the prep work. . . . [¶] [Mr. Lua] the first purple shirt [BID officer]” tugged on
appellant’s tent. Appellant testified, “I told them to go away,” “[a]nd . . . I had the knife
in my hand,” “[s]o I came around. And I shook it and waved it over his head like this and
gestured with it.” He also testified, “I was cutting bread with the bread knife. And that’s
why I had it out. And that’s why I had it in my hand. . . . At no time, did I try to lunge,
did I try to jab, did I chase anyone. And . . . I don’t know why they are making this story
up. . . . [¶] And here again, . . . there’s all kinds of crazy inconsistencies in their story
besides the knife and the lunging.” Appellant admitted to being loud and belligerent
when the BID officer told him to take down the tent.
       Appellant testified that, later, “Officer[s] Dudas and Quintero showed up.” While
Quintero handcuffed appellant, Dudas went back into the tent and “came out with the
bread knife, which is the one I had been gesturing with, and accused [me] of lunging and
jabbing and chasing with [it.]”
       On cross-examination, the prosecutor did not ask appellant about police reports
other than to ask whether, when he talked to Ceja, appellant used certain pejorative
epithets to refer to the BID officers. Appellant responded he did not recall.
       Appellant called Mama Wade to testify at trial. She was living in the area of the
encampment at the time of the incident and provided a written statement to the police
(apparently to Ceja) and a second statement to a defense investigator. After obtaining a
stipulation from both sides, the court read both statements to the jury. Wade then
testified the statements read by the court were the statements she had written. In her
statement to Ceja, Wade reported that after a “purple [shirt]” came to tell appellant
something, appellant “started talking in a loud voice. He got up and had a long knife and


                                               5
told the person to go get the police. He threatened the person with the knife . . . the
incident ended [when he] [appellant] went back to his campsite.” In Wade’s statement to
Jaime Martinez, appellant’s investigator, Wade said, “[Appellant] shook the knife
threateningly to young men, but he did not hit them. He did not come out of his tent area
at them, but he went back in.”
       Mary Jane Haywood testified she was with appellant in his tent when a BID
officer approached appellant and told him to exit. Haywood denied appellant had a knife,
and Haywood stated that, when the officer returned in 10 minutes, the officer said
appellant had threatened him with a knife. She also denied appellant chased the officer.
She testified appellant did not exit the tent. Haywood did not remember telling an
investigator that appellant held the knife over his head, waved it about, but did not try to
assault anyone.3 Haywood also testified she never spoke to the police or gave a statement
about the incident.
3. The Trial Court Denied Appellant’s Request to Order the People to Produce Officer
Ceja to Testify at Trial
       Appellant asked the court to have the prosecution produce Ceja for “impeachment
testimony” even though appellant had not subpoenaed Ceja. When the court asked why
Ceja’s testimony was relevant, appellant explained he had a problem with Lopes’s
testimony because “it does not appear to be accurate and he didn’t tell anybody else that.”
The prosecutor pointed out there were exactly six lines in Ceja’s report referencing
Lopes, namely, “Mr. Lopes stated that he was across the street when he saw the
defendant come out of his tent with a knife and try to cut one of the guys with the shirts.
Witness Lopes sounded very rushed and said he was unable to stay on the phone at this
time. I advised he might be needed for court. He responded, ‘[O]kay. Just call me.’ ”
The court then refused appellant’s request, commenting, “I don’t see how [making her
come in] could help [appellant].”
3
       In rebuttal, Martinez testified Haywood told Martinez that Haywood saw appellant
waving the knife over his head and appellant “was holding a bread knife in his hand but
did not attempt to assault” security personnel.


                                              6
4. All Three Officers Prepared Police Reports.
       The record includes police reports prepared by all three officers. Quintero’s police
report memorialized what Quintero found when he arrived at the scene on June 25, 2013
and what Quezada, Lua, and Lopes told Quintero about the incident. It also notes,
“Officers searched the surrounding area for additional [witnesses] with negative results”
but further investigation revealed Lopes “observed [appellant] with a large knife in hand
in a threatening manner approaching one of the Victims.”
       Ceja’s report memorialized statements she obtained from Quezada, Lua, Wade,
and Lopes. It also incorporates statements from Ceja’s June 25, 2013 interview of
appellant at the police station. Ceja reported that on June 25, 2013, appellant “admit[ted]
that he yelled very loudly, rudely, obscenely and menacingly at each victim, individually,
when he was approached.” The report also states, “[Appellant] first stated that he did
have a knife in his hand when he confronted . . . Quezada yet [appellant] insists that it
was because he was having breakfast and cutting bread. . . . [Appellant] states that he
never threatened to cut or stab anyone. Later during this interrogation [appellant] agreed
to make a written statement and attempted to change his oral statement and say/write that
he did not have a knife in his hand when he yelled at victims. [Appellant] stated that he
did threaten to ‘shove’ the [victims] but never threatened to cut or stab the victims.” Ceja
indicated that, during the interview, appellant made derogatory statements about the BID
officers, and “[appellant] made these statements orally as he wrote a statement and
continued to change his story regarding the knife. He became loud [and] argumentative
and at this point I ended this interrogation.”
       The record also contains appellant’s written statement to Ceja, describing what
happened when the first and then the second BID officer arrived at appellant’s location,
without any mention of the knife. Later in the statement, after describing his encounter
with the second BID officer, appellant suggested, “Maybe the 1st or 2nd annoying little
[BID officer] faggot in a purple shirt saw the bread knife I was planning on using to slice
bread for bacon and eggs.”



                                                 7
                                PROCEDURAL HISTORY
1. Appellant’s Pitchess/Brady Motion.
       Appellant’s October 8, 2013 pretrial Pitchess motion sought information from the
personnel files of Dudas, Quintero, and Ceja.4 Specifically, it requested “[r]ecords and
information and statements regarding any complaints of prejudice, unnecessary force,
false arrest, unlawful search, and seizure, dishonesty, abuse of authority, violation of civil
rights under color of law and any other conduct which constitutes a violation of law or
other policies of the [LAPD]” and asked for contact information for any witnesses to such
misconduct.
       The pretrial Pitchess motion cited Pitchess and other cases construing Evidence
Code section 1045, subdivision (a), as support for eight of the nine categories of
information requested. The ninth request sought “any Brady material revealed by an in
camera inspection of said personnel files and the information requested [elsewhere in the
motion].” In his points and authorities supporting the motion, appellant acknowledged
“Brady’s constitutional materiality standard is narrower than the Pitchess requirements”
and “if a defendant meets the good cause requirements for Pitchess discovery, any Brady
material in an officer’s file will necessarily be included.”
       Appellant submitted a supporting declaration that declared, among other things,
Quintero lied in his police report (falsely stating “ ‘[o]fficers searched the surrounding
area for additional [witnesses] with negative results’ ”). Appellant argued this statement
was false because the officers overlooked his neighbors, “Larry and Mary” and turned
instead to “a witness across the street.” Appellant also accused Ceja of lying in her



4
       On January 9, 2014, the Los Angeles Police Department (LAPD) received a
second such motion from appellant. It requested the discovery of the same information
and items as the first motion. The January 9, 2014 motion has no stamp or other marking
indicating it was ever formally filed or lodged with the trial court. However, the trial
court permitted the Los Angeles city attorney, representing LAPD, an opportunity to file,
and the city attorney filed, an opposition to the second motion. We treat both documents
as one motion.


                                              8
follow-up investigation when she said appellant “ ‘attempted to change his oral statement
and say/write that he did not have a knife in his hand when he yelled at victims.’ ”
       Appellant also implied the arrest involved collusion between the BID officer
victims and the arresting and investigating officers. He pointed out “[t]his arrest for the
current allegations is the second false arrest of defendant Boatwright in the month of June
by the LAPD at the exact same location under nearly identical circumstances.”
According to appellant, “the first arrest [a D.A. reject] . . . was by Officer Rice and his
partner and was a result of false allegations by two purple shirts [BID officers].”5
       The declaration raised questions about two occasions when Dudas visited the
location between June 7, 2013 and June 25, 2013. Regarding the first visit, appellant
stated, “[i]n retrospect it appears likely [Officer] Dudas was casing the location for the
purpose of instigating a second false arrest.” Regarding the second visit, appellant
recounted Dudas “accused one of the regulars [McDonald] at 3rd and Main falsely of
having an open container” and “threatened to arrest [McDonald].”6
       Based on the statements in his declaration, appellant argued he had “made a prima
facie showing of false arrest on both June 7th and June 25th that raises the specter of a
pattern and practice of . . . a specious citizen’s arrest complaint by a [BID officer] that
results in a false arrest . . . .” The declaration asserted, “trial in this matter will be
determined on the credibility of the arresting and investigating officers and any evidence
of misconduct by those officers will be vital to the defense of [the] case.”



5
        The police report for the June 7, 2013 arrest identifies the victim as BID officer
Steven Ulloa and the arresting officers as officers Rice and Guizar. According to the
report, Ulloa accused appellant of holding a hammer above his head, charging at Ulloa
with the hammer, and stating, “ ‘I’m going to kill you!’ ” Nothing in the report indicates
the victims or officers involved in the June 25, 2013 arrest had anything to do with the
June 7, 2013 arrest.
6
      According to appellant, on this second occasion, Dudas was accompanied by a
Black Los Angeles police officer. McDonald, a Black man, called Dudas a racist,
Dudas’s partner took exception to the remark, and Dudas threatened to arrest McDonald.


                                                9
2. The February 6, 2014 Pretrial Pitchess Motion Hearing and Court’s Ruling.
       During the February 6, 2014 hearing on appellant’s pretrial Pitchess motion, the
court told appellant, “the most you will get at this stage would be contact information
from witnesses who have made complaints, within the applicable period, against these
officers.” The court inquired how Ceja’s opinion appellant “changed his story” could be
evidence of misconduct, indicating it was “not inclined” to grant the motion as to Ceja.
Appellant responded, “Okay. Well, that’s acceptable” but complained Ceja’s report
contained “blatant lie[s],” accused appellant of “hate crime for some names I called [the
BID officers] about their sexual identity” and made it “appear as if I’m guilty or being
dishonest.” Appellant told the court he had never changed his story explaining, “I never
said at any point that I did not have a knife, because I had it to cut bread.” The court
denied appellant’s request to discover Ceja’s records, and indicated Ceja’s opinion was
harmless “if you have a statement that shows what you actually said.”
       The court granted appellant’s pretrial Pitchess motion but only as to complaints
against Dudas and Quintero for “[f]abrications of probable cause and false reports only.”
The court told appellant, “you understand that the complaints are limited, by law, to a
period of five years from the date of the incident.”
3. The February 7, 2014 In Camera Hearing and Ruling.
       The February 7, 2014 minute order reflects that, on that date, the court conducted
the Pitchess in camera hearing with the records custodian, “[n]o discovery [was]
ordered,” and the court ordered sealed the reporter’s notes of the in camera hearing. On
October 28, 2015, this court augmented the record on appeal with the sealed transcript of
the February 7, 2014 in camera hearing proceedings.7




7
       Neither Quintero nor Ceja testified at trial.


                                             10
                                    APPLICABLE LAW
1. Pitchess Motions.
         In 1978, “the California Legislature ‘codified the privileges and procedures
surrounding what had come to be known as “Pitchess motions” . . . through the
enactment of Penal Code sections . . . and Evidence Code sections 1043 through 1045.’
[Citations.]” (City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1, 9
(City).)
         In Warrick v. Superior Court (2005) 35 Cal.4th 1011, our Supreme Court
observed that, to initiate discovery under a Pitchess motion, the defendant must file a
motion supported by affidavits showing good cause for the discovery. This means
demonstrating the materiality of the information to the pending litigation and stating upon
reasonable belief that the police agency has the records or information. This two-part
showing is a “ ‘relatively low threshold for discovery.’ ” (Id. at p. 1019.)
         Warrick teaches that, to satisfy the materiality part of the good cause requirement,
defense counsel’s affidavit must, inter alia, “describe a factual scenario supporting the
claimed officer misconduct.” (Warrick, supra, 35 Cal.4th at p. 1024.) Warrick
concluded “a plausible scenario of officer misconduct is one that might or could have
occurred. Such a scenario is plausible because it presents an assertion of specific police
misconduct that is both internally consistent and supports the defense proposed to the
charges.” (Id. at p. 1026.) Warrick stated, “What the defendant must present is a specific
factual scenario of officer misconduct that is plausible.” (Id. at p. 1025.) Warrick also
stated, “A defendant must also show how the information sought could lead to or be
evidence potentially admissible at trial. Such a showing ‘put[s] the court on notice’ that
the specified officer misconduct ‘will likely be an issue at trial.’ [Citation.] Once that
burden is met, the defendant has shown materiality under section 1043.” (Warrick, at p.
1026.)




                                              11
       “If the trial court finds good cause for the discovery, it reviews the pertinent
documents in chambers and discloses only that information falling within the statutorily
defined standards of relevance. [Citations.] The trial court may not disclose complaints
more than five years old, the ‘conclusions of any officer’ who investigates a citizen
complaint of police misconduct, or facts ‘so remote as to make [their] disclosure of little
or no practical benefit.’ ([Evid. Code,] § 1045, subd. (b); [citation].)” (Warrick, supra,
35 Cal.4th at p. 1019.)
       The court may deny a Pitchess motion to the extent its request for information is
overly broad. (Cf. Warrick, supra, 35 Cal.4th at 1027; People v. Hill (2005)
131 Cal.App.4th 1089, 1096, fn. 7 (Hill); see California Highway Patrol v. Superior
Court (2000) 84 Cal.App.4th 1010, 1021 (CHP).) “This specificity requirement excludes
requests for officer information that are irrelevant to the pending charges. [Citation.]
And it enables the trial court to identify what types of officer misconduct information,
among those requested, will support the defense or defenses proposed to the pending
charges. This inquiry establishes the statutorily required materiality prong of the good
cause showing that a defendant must make to receive in-chambers review of potentially
relevant officer records.” (Warrick, at pp. 1021-1022.)
       We review a trial court’s ruling on a Pitchess motion for abuse of discretion.
(People v. Hughes (2002) 27 Cal.4th 287, 330.)
2. Brady v. Maryland.
       In People v. Salazar (2005) 35 Cal.4th 1031 (Salazar), our Supreme Court,
discussing Brady v. Maryland, supra, 373 U.S. 83, stated, “ ‘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.’ [Citation.] Prejudice, in this context, focuses on ‘the materiality of the evidence
to the issue of guilt or innocence.’ [Citations.]” (Salazar, at p. 1043.)




                                             12
       “[I]n determining whether evidence was material, ‘the reviewing court may
consider directly any adverse effect that the prosecutor’s failure to respond might have
had on the preparation or presentation of the defendant’s case.’ [Citation.]” (In re Steele
(2004) 32 Cal.4th 682, 701.) “[T]he evidence’s materiality ‘ “must be evaluated in the
context of the entire record.” ’ [Citation.] In deciding whether asserted Brady evidence
is material to defendant’s case, it is therefore appropriate to examine the effect of the
evidence on the actual . . . proceeding in which defendant was tried.” (People v. Hoyos
(2007) 41 Cal.4th 872, 919-920.) Materiality requires a defendant to show a reasonable
probability of a different result (Salazar, supra, 35 Cal.4th at p. 1043), i.e., the evidence
“could reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.” (Kyles v. Whitley (1995) 514 U.S. 419, 435
[131 L.Ed.2d 490, 506] (Kyles).)
       “If the undisclosed evidence is ‘material,’ the defendant’s conviction must be
vacated without a separate harmless error review, because the prejudice determination is
subsumed within the definition of the term ‘material.’ [Citation.]” (In re Brown (1998)
17 Cal.4th 873, 903.)
3. Pitchess Motions and Brady.
       In City, the defendant, like appellant, filed a hybrid Pitchess/Brady motion. The
trial court granted the defendant discovery of information concerning an incident that
occurred beyond the five-year limit of Evidence Code section 1045, subdivision (b)(1).8
(City, supra, 29 Cal.4th at pp. 5-6.) Our Supreme Court addressed the interplay between
Pitchess and Brady. (Id. at p. 7.) The court noted, “Because Brady’s constitutional
materiality standard is narrower than the Pitchess requirements, any citizen complaint



8
        Evidence Code section 1045, subdivision (b)(1), states, “In determining relevance,
the court shall examine the information in chambers in conformity with Section 915, and
shall exclude from disclosure: [¶] (1) Information 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.”


                                              13
that meets Brady’s test of materiality necessarily meets the relevance standard for
disclosure under Pitchess. ([Evid. Code,] § 1045, subd. (b).)” (City, at p. 10.)
       The “ ‘relatively relaxed standard’ ” (Warrick, supra, 35 Cal.4th at p. 1016) of
good cause of the Pitchess statutory scheme is the sole threshold a defendant must meet
to obtain in camera review of personnel records pursuant to a hybrid Pitchess/Brady
motion where the defendant is seeking information to which the defendant is statutorily
entitled under Evidence Code sections 1043 and 1045, including Brady information that
falls within the five-year limit of Evidence Code section 1045, subdivision (b)(1). More
recently, in People v. Superior Court (Johnson) (2015) 61 Cal.4th 696 (Johnson), our
Supreme Court stated, “because the ‘ . . . “ ‘Pitchess process’ operates in parallel with
Brady and does not prohibit the disclosure of Brady information,’ ” all information that
the trial court finds to be exculpatory and material under Brady must be disclosed,
notwithstanding Evidence Code section 1045’s limitations.” (Johnson, at p. 720; accord,
Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 60 (Abatti).)
                                      DISCUSSION
       Appellant claims the trial court violated state law and his right to due process by
denying, in part, his hybrid Pitchess/Brady motion. He takes issue with the trial court’s
failure to order discovery as to any acts of dishonesty by Ceja, failure to order disclosure
of disciplinary results for any misconduct for all three officers, and failure to include
Brady material (for complaints against the officers more than five years prior to the
arrest) in the in camera inspection. Appellant also asks this court to conduct an
independent review of the in camera Pitchess hearing in this case.
1. The Trial Court’s Rulings on Appellant’s Requests for Pitchess Discovery Were Not
an Abuse of Discretion.
       a. The Trial Court Properly Denied Discovery of Ceja’s Personnel Records under
Pitchess.
       The trial court determined Ceja’s opinion appellant had “changed his story” about
the knife was not a plausible basis for misconduct and denied the Pitchess motion on that
basis. Ceja’s statement appellant “changed his story” is supported by the record.

                                              14
Although appellant admitted, at trial, he was holding a bread knife when the BID officers
arrived, one of his written statements recounting his encounters with the two BID officers
makes no mention of any knife. The trial court did not abuse its discretion by concluding
that Ceja’s report provided no plausible basis for misconduct.
       The trial court was permitted to employ common sense in its plausibility
determination and to make a reasonable and realistic assessment of the facts (People v.
Thompson (2006) 141 Cal.App.4th 1312, 1318-1319). We review a trial court’s ruling,
not its reasoning. (Cf. People v. Mason (1991) 52 Cal.3d 909, 944; Kennedy v. Superior
Court (2006) 145 Cal.App.4th 359, 368.) In order to conclude a trial court abused its
discretion, we must conclude the court’s action was irrational, capricious, or patently
absurd (cf. People v. Delgado (1992) 10 Cal.App.4th 1837, 1845; In re Arthur C. (1985)
176 Cal.App.3d 442, 446) and without even a fairly debatable justification (People v.
Clark (1992) 3 Cal.4th 41, 111). We cannot conclude that here.
       b. The Court Properly Denied Appellant’s Overly Broad Requests for Pitchess
Discovery.
       Appellant argues the trial court abused its discretion by not ordering the disclosure
of LAPD disciplinary results for any of the three officers arising out of any complaint of
misconduct. In this regard, appellant points out his pretrial Pitchess motion asked for
information about any discipline imposed by LAPD for misconduct by any of the three
officers arising out of “any complaints of prejudice, unnecessary force, false arrest,
unlawful search, and seizure, dishonesty, abuse of authority, violation of civil rights
under color of law and any other conduct which constitutes a violation of law or other
policies of the [LAPD].”
       However, appellant’s request for information about discipline arising from
“complaints of prejudice, unnecessary force, . . . unlawful search, and seizure, . . . abuse
of authority, violation of civil rights under color of law and any other conduct which
constitutes a violation of law or other policies of the [LAPD]” was overly broad because
appellant’s prima facie showing (alleged lies in the police reports and false arrests) only
supported discovery in connection with any fabrications of probable cause and false


                                             15
reports by the arresting officers (Dudas and Quintero). (Cf. Warrick, supra, 35 Cal.4th at
pp. 1022, 1027; Hill, supra, 131 Cal.App.4th at p. 1096, fn. 7; see CHP, supra,
84 Cal.App.4th at p. 1021.) The court therefore properly granted the motion as to
“[f]abrications of probable cause and false reports only.” Appellant’s more generalized
request for information about the officers’ alleged “dishonesty” was not supported by
appellant’s limited showing (cf. CHP, at pp. 1022-1024) and, as indicated, appellant
failed to describe a plausible factual scenario of dishonesty as to Ceja. The trial court
therefore did not abuse its discretion to the extent it denied appellant’s request for
Pitchess information from the personnel records of the three officers pertaining to
categories other than “fabrications of probable cause and false reports.”
2. The Trial Court’s Failure to Review Personnel Records for Complaints Beyond the
Five-Year Limit Was Not Error.
       Appellant argues the trial court’s ruling on his pretrial Pitchess motion omitted
any reference to his request for Brady material and the trial court thereby “unlawfully
precluded appellant from discovering possible (and highly-relevant) Brady material
specified” in his motion. Appellant is correct the trial court made no reference to
appellant’s request for Brady material. It also appears the trial court believed appellant’s
motion was constrained by Evidence Code section 1045, subdivision (a)’s five-year
limitation on discovery for Pitchess motions. During the February 6, 2014 hearing on the
motion, the court told appellant, “the most you will get at this stage would be contact
information from witnesses who have made complaints, within the applicable period,
against these officers.” (Italics added.) After concluding appellant had made a good
cause showing for examination of Dudas’s and Quintero’s personnel records for
“[f]abrications of probable cause and false reports only,” the court reminded appellant,
“the complaints are limited, by law, to a period of five years from the date of the
incident.”




                                              16
         We agree with appellant the five-year limit on Pitchess discovery under Evidence
Code section 1045, subdivision (b)(1) does not apply to discovery of Brady material.
(Cf. Abatti, supra, 112 Cal.App.4th at p. 60; see Johnson, supra, 61 Cal.4th at p. 720;
City, supra, 29 Cal.4th at p. 13.) We conclude, however, the court had no obligation to
conduct an in camera inspection of records beyond the five-year limit of section 1045,
subdivision (b)(1) as to any of the three officers because appellant failed to request in
camera review of information outside that limit and failed to make a preliminary showing
that any of the three officers’ files contained evidence material to appellant’s defense.
         a. Appellant’s Motion Only Requested In Camera Review of Personnel Records
Discoverable Within the Five-Year Limit of Evidence Code section 1045.
         Citing Pitchess or its progeny, appellant’s motion asked the trial court to conduct
an in camera inspection for records or information responsive to eight categories of
requests. The ninth request was for “[a]ny Brady material revealed by an in camera
inspection of said personnel files and the information requested above” referring to the
first eight items of discovery requested under Pitchess.
         This language asked the court to review the personnel records discoverable under
Pitchess for any additional Brady material.9 It did not communicate a request to review
additional files not discoverable under Pitchess such as complaints beyond the five-year
limit. Because the motion did not request in camera review of any files beyond the files
discoverable under Evidence Code section 1045, subdivision (a), the trial court did not
err in failing to search for files outside the section 1045, subdivision (b)(1) five-year
limit.




9
       The trial court, having found under Pitchess’s “ ‘relatively relaxed standard’ ”
(Warrick, supra, 35 Cal.4th at p. 1016) that appellant had shown good cause as to Dudas
and Quintero concerning “fabrications of probable cause and false reports only,”
necessarily included in that finding any related Brady information within the five-year
period.


                                              17
       b. Appellant Failed to Make a Prima Facie Showing of Materiality under Brady.
       Assuming appellant’s motion requested Brady information beyond the five-year
limit, we conclude it was incumbent on appellant to make a prima facie showing that the
officers’ files contained evidence that was material (for Brady purposes) to appellant’s
defense. As appellant concedes, there is a significant difference between the relatively
relaxed standard for materiality under Pitchess and materiality under Brady. Under
Brady, the information requested must be favorable to the accused and material to the
issue of guilt or innocence; the court must consider whether the evidence “could
reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.” (Kyles, supra, 514 U.S. at p. 435.)
       “Although Brady disclosure issues may arise ‘in advance of,’ ‘during,’ or ‘after
trial’ [citation]), the test is always the same. [Citation.]” (City, supra, 29 Cal.4th at p. 8.)
However, like the case in Abatti, in which the defendant, like appellant, filed a hybrid
Pitchess/Brady motion (Abatti, supra, 112 Cal.App.4th at p. 42), “the question before us
does not involve the prosecutorial duty to disclose” (id. at p. 58, italics added), or
therefore, prosecutorial Brady error. Instead, the issue here is whether the trial court
violated appellant’s “due process right to gain access to material exculpatory evidence for
the preparation of a defense.” (Ibid.) Appellant did not cite any reported California cases
deciding the necessary preliminary showing for discovery of Brady information pursuant
to a hybrid Pitchess/Brady motion and we are aware of none.
       In Harrison v. Lockyer (9th Cir. 2003) 316 F.3d 1063 (Harrison), the defendant
made a motion, based on due process, seeking discovery of police records, including
information beyond the five-year limit. (Id. at p. 1065.) The trial court denied the
motion beyond the five-year cut-off. (Ibid.) In an opinion issued shortly after the
California Supreme Court’s decision in City, the Ninth Circuit reviewed de novo the trial
court’s denial. In affirming the trial court’s denial of discovery beyond the five-year
limit, the Ninth Circuit noted, “we are not instructed [in City] on how a defendant in a
criminal case will know, or be able to make, a preliminary showing that a police
personnel file contains evidence material to his defense. But we are clear that the


                                              18
California Supreme Court has faithfully followed the United States Supreme Court. In
our case, Harrison made no showing that [the arresting officer’s] file contained
complaints material to his defense. Therefore [appellant] was not denied due process
when he was denied access to material more than five years old.” (Id. at p. 1066, italics
added.)
       The Ninth Circuit concluded the defendant had a due process right to judicial
review of police records for information that was “material” for purposes of Brady, but
only if, prior to that review, the defendant made a preliminary showing the officer’s file
actually contained complaints “material” (for Brady purposes) to the defendant’s defense.
(Harrison, supra, 316 F.3d at pp. 1065-1066; City, supra, 29 Cal.4th at p. 15.) Following
the reasoning of Harrison, we likewise affirm because appellant made no preliminary
showing the personnel records of any of the three officers “contained complaints material
to his defense.” (Harrison, at p. 1066.) We do not suggest appellant was required to
show the prosecutor (or the trial court) for purposes of Brady, “suppressed” information
that was “favorable” and “material.” Instead, we conclude appellant failed to make a
prima facie showing that the officers’ files contained information that was “material” for
purposes of Brady, the showing required before appellant had a due process right to
judicial review of the file for such information.
       Appellant also failed to make a prima facie showing that, even if the personnel
files contained relevant impeachment evidence against the three officers, the files would
contain impeachment evidence that would be, for Brady purposes, “material” in his case.
That is, appellant has failed to make a prima facie showing the officers’ “credibility [was]
the major issue in [his] case [or that the] evidence at trial [would] consist of opposing
stories presented by the defense and the prosecution witnesses. (See Giglio v. United
States (1972) 405 U.S. 150, 154 [31 L.Ed.2d 104, 108, 92 S.Ct. 763, 766]; Napue v.
Illinois (1959) 360 U.S. 264, 269 [3 L.Ed.2d 1217, 1221, 79 S.Ct. 1173, 1177]; United
States v. Kiszewski (2d Cir. 1989) 877 F.2d 210, 216.)” (Abatti, supra, 112 Cal.App.4th
at p. 52.) There is no evidence that, at the time of appellant’s pretrial Pitchess motion,
the People identified any of the three officers as key witnesses. Appellant’s contention


                                             19
“any evidence of misconduct of these officers will be vital to the defense” was not borne
out by the facts of the underlying incident. The officers were not percipient witnesses.
Because they arrived at the scene of the assault after the fact, they were not in a position
to present an “opposing story” bearing on appellant’s innocence or guilt. Therefore,
appellant failed to make a prima facie showing that their direct testimony or any
impeaching testimony elicited during cross-examination would be “material” at trial
under Brady.
       Appellant also failed to make a prima facie showing that there was any factual
basis for impeaching any of the three officers. Appellant asked the court to infer
collusion and dishonesty between the BID officer victims (Quezada and Lua) and the
three arresting officers (Dudas, Quintero, and Ceja) based on an entirely different arrest
on a different date involving a different BID officer victim and different investigating and
arresting police officers. Although appellant declared the circumstances of his arrest on
June 7, 2013 by officers Rice and Guizar for allegedly threatening BID officer Ulloa with
a hammer was “in the same location under nearly identical circumstances,” he provided
no evidence the June 7, 2013 arrest was a “false” arrest. He did not, for example, deny
threatening BID officer Ulloa with a hammer that day or provide evidence the officers
were in collusion. Even if appellant had provided such evidence, it would not have given
rise to any inference of collusion among the different victims and the three officers
involved in the June 25, 2013 matter.
       Certainly, the specific statements appellant identified as “lies” in the police reports
were not material to the issues of innocence and guilt. Ceja’s statement, in her report,
that appellant “changed his story” was a matter of opinion rather than fact and was
supported by the documents she reviewed. Her opinion did not support an inference she
falsified any facts. Appellant’s allegation Dudas once falsely accused another person in
the area of having an open container without arresting that person was not evidence
Dudas made a false arrest. The officers’ allegedly false statements in police reports that
they searched the area of appellant’s arrest for additional witnesses with unsuccessful
results was not material to innocence or guilt. The adequacy of the officers’ investigation


                                             20
for third-party witnesses in an after-the-fact investigation of a crime is not relevant to any
element of appellant’s crime or any defense.
       Without a prima facie showing the officers’ files contained evidence that was
“material” under Brady, there was no reason for the trial court to review personnel
records for Brady information and the trial court’s failure to do so was not error.
3. Further In Camera Review by the Trial Court Is Unnecessary.
       Appellant claims this court should review the sealed transcript of the February 7,
2014 in camera hearings on his Pitchess/Brady motion to determine whether any police
personnel records were erroneously withheld. Trial courts are granted wide discretion
when ruling on motions to discover police officer personnel records. (People v. Samayoa
(1997) 15 Cal.4th 795, 827 (Samayoa); People v. Memro (1995) 11 Cal.4th 786, 832.)
       We have reviewed the contents of the sealed transcript of the February 7, 2014 in
camera hearing. The transcript constitutes an adequate record of the trial court’s review
of any document(s) provided to the trial court during the in camera hearing, and said
transcript fails to demonstrate the trial court abused its discretion or erred by failing to
disclose any information (cf. Samayoa, supra, 15 Cal.4th at p. 827; see People v. Mooc
(2001) 26 Cal.4th 1216, 1228-1230, 1232) that fell within the five-year limit of Evidence
Code section 1045, subdivision (b)(1), whether Brady information or otherwise. The trial
court fulfilled its responsibilities under Pitchess and Brady to the extent appellant sought
information to which he was statutorily entitled, including any Brady information that fell
within the above five-year limit.
       As noted above, the trial court’s failure to review the three officers’ personnel files
for information or complaints dating more than five years prior to the arrest was not an
abuse of discretion or error.




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                                     DISPOSITION
      The judgment is affirmed.




                                                HOGUE, J.
We concur:




             EDMON, P. J.




             ALDRICH, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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