Filed 8/17/15 P. v. Horton CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E061560

v.                                                                       (Super.Ct.No. RIF1201844)

JAMES CHAD HORTON,                                                       OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.

Affirmed with directions.

         Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and

Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.




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          To evade being stopped for an expired vehicle registration, defendant, James

Horton, led officers on a high speed chase which ended after his pickup truck spun out

one hundred eighty degrees, ran into a patrol car, reversed and hit the patrol car again.

From there, it reversed, and ran up the guide wire of a utility pole as police shot at the

vehicle. Inside defendant’s truck, police found a hand gun, and ammunition for the hand

gun was found on the ground nearby. Defendant was charged and convicted of assaulting

a peace officer with a deadly weapon (Pen. Code, § 245, subd. (c)), evading a pursuing

police officer (Veh. Code, § 2800.2), possession of a firearm by a convicted felon (Pen.

Code, § 29800, subd. (a)(1)), possession of ammunition by a person prohibited from

possessing a firearm (Pen. Code, § 30305, subd. (a)), and several prior convictions.

Defendant was sentenced to an aggregate term of 13 years, 8 months in prison, and

appealed.

          On appeal, defendant argues that (a) the trial court erred in denying his motion for

discovery of police personnel information pursuant to Pitchess v. Superior Court (1974)

11 Cal.3d 531 (Pitchess motion), and (b) there is insufficient evidence to support his

convictions for possession of the gun or the ammunition recovered at the scene. We

affirm.

                                            BACKGROUND

          On March 23, 2012, at approximately 4:00 a.m., Officer Pap was on patrol when

he came across a black Toyota truck, driven by defendant, with an expired registration

tag. A passenger also occupied the truck. The officer made a U-turn and activated his



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lights and siren to make an enforcement stop, but the truck took off on a high speed

chase. Officer Pap’s speed was approximately 80 to 90 miles per hour trying to catch up.

Defendant drove through a red light and the pursuit was joined by three other police

units. After going through an intersection, defendant made a U-turn and the chase

resumed, at speeds of up to 70 miles per hour. At some points, defendant drove on the

wrong side of a divided road.

       Eventually, defendant’s truck spun out, one hundred eighty degrees, so that his

vehicle and the patrol car faced each other. Defendant rammed the patrol car as Officer

Pap was in the process of opening the door of his vehicle with his gun drawn. Officer

Pap started shooting as he stepped out his car; then he heard tires squealing, saw smoke,

and felt another impact as defendant had rammed the vehicle a second time. By this time,

Sergeant Townsend started shooting at the truck. Thereafter, the truck reversed, and went

up a guide wire, striking a utility pole.

       Defendant’s passenger was taken into custody by Officer Maier, after he exited the

vehicle and took off running. Defendant fell out of the truck and ran away from the

vehicle. A dog deployed by one of the canine units at the scene located defendant under

a parked car, and he was taken into custody by Officer Taylor, one of the canine handlers.

Defendant had suffered a gunshot wound to his left arm, along with several less serious

injuries.

       Sergeant Townsend reported that he had seen someone exit the rear of the truck,

who appeared to have a handgun. When he was located, no weapons were found on



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defendant. However, a search of the truck and the surrounding area yielded a .22 caliber

semi-automatic handgun on the passenger-side floorboard of defendant’s truck, and a

damaged magazine was located on the ground near seven live .22 caliber rounds in front

of Officer Pap’s vehicle. Riverside police officers use .40 caliber firearms.

       Defendant was charged with assault on a peace officer with a deadly weapon

(vehicle) (Pen. Code, § 245, subd. (c), count 1), evading pursuing officers (Veh. Code,

§ 2800.2, count 2), possession of a firearm by a convicted felon (Pen. Code, § 29800,

subd. (a)(1), count 3), and possession of ammunition by a person prohibited from

possessing a firearm (Pen. Code, § 30305, subd. (a), count 4.) It was further alleged that

defendant had previously been convicted of three felonies for which he served separate

prison terms (prison priors) within the meaning of Penal Code, section 667.5, subdivision

(b), and one prior conviction for a serious or violent felony within the meaning of the

Strikes law. (Pen. Code, § 667, subds. (c), (e)(1), § 1170.12, subd. (c)(1).)

       Prior to trial, defendant made a pretrial motion for discovery pursuant to Pitchess,

which was denied. Defendant was tried by a jury. At the close of the People’s case in

chief, the parties stipulated that defendant had been convicted of a felony on May 28,

2008, and that on August 7, 2012, defendant’s passenger had pled guilty to unlawful

possession of the .22 caliber firearm from the incident.

       During his case in chief, defendant presented the testimony of a private

investigator who was retired after a lengthy career as a police chief and federal agent, as

an expert in police procedure, accident reconstruction, and use of force by police officers.



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Comparing the footage from two of the officers’ dash board cameras (dash cams), the

witness formed the opinion that as the black truck was spinning out, Officer Pap’s vehicle

struck it. The expert witness noted that neither car’s airbag had deployed, which would

have happened with a violent head-on collision, so he found nothing to suggest the truck

drove into the police car, rammed it, or moved it backward several feet. In the expert’s

opinion, the use of deadly force was unjustified.

       The video then showed defendant ducking under the dash of the truck as shots

were fired at him, trying to manipulate either the gear shift of the steering wheel, bumped

the police car, and finally got the truck in reverse to escape the gunshots. There were 14

bullet holes in the driver’s side of the truck windshield, and some rounds penetrated the

headrest.

       The jury convicted defendant of all four counts. In a separate proceeding,

defendant admitted the three prison priors and the Strike allegation. He was subsequently

sentenced to the middle term of four years for count 1, doubled pursuant to the Strikes

law, with consecutive subordinate terms of one year four months each for counts 2 and 3

(one-third the midterm of eight months, doubled for the Strike). The court stayed the

term for count 4, and added one year for each of the prison priors, for a total aggregate

term of 13 years, 8 months. Defendant appealed.




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                                             DISCUSSION

       1.       The Trial Court Erred in Denying the Pitchess1 Motion.

                a.     Matters Underlying Defendant’s Pitchess Motion.

       Defendant’s Pitchess motion sought information relating to the four police officers

involved in the incident, relating to acts of violation of constitutional rights, fabrication of

charges, fabrication of evidence, fabrication of reasonable suspicion and/or probable

cause, illegal search/seizure, false arrest, perjury, dishonesty, writing false police reports,

false or misleading internal reports including but not limited to false overtime or medical

reports, and any other evidence of misconduct amounting to moral turpitude.

       In his declaration supporting the motion, defense counsel asserted only that he was

informed and believed that defendant denies the facts as related by the police officers.

However, in the points and authorities filed in support of the motion, defendant accused

the named police officers of using excessive and unnecessary force or violence upon him,

placing him under arrest without justification or cause, intentionally lying about the

circumstances leading up to the defendant’s arrest in order to justify the injuries inflicted

upon him, and thereafter making false representations regarding the circumstances of his

arrest in the report provided to the district attorney’s office.

       At the hearing, when the court asked if counsel wanted to add to what was written,

defense counsel stated, “The denial is that my client assaulted the officer while driving.

The claim is that Mr. Horton rammed the police vehicle. Our scenario is the other way

       1    Pitchess v. Superior Court (1974) 11 Cal.3d 531.)


                                               6
around[,]” after which, counsel referred the court to the page of his points and authorities

spelling out the defense scenario In denying the motion, the court indicated the scenario

to which defendant referred was in the points and authorities, whereas the declaration

contained a mere denial of the facts as related by the officer.

              b.     General Principles Relating to Pitchess Motions

       A defendant is entitled to discovery of a police officer’s confidential personnel

records that contain information relevant to the defendant’s defense. (Pitchess v.

Superior Court, supra, 11 Cal.3d at pp. 537-538.) To obtain such discovery, the motion

must include affidavits showing good cause for the discovery or disclosure sought,

setting forth the materiality of the information. (Evid. Code, § 1043, subd. (b)(3);

Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) This two part showing of

good cause is a “relatively low threshold for discovery.” (City of Santa Cruz v.

Municipal Court (1989) 49 Cal.3d 74, 84.)

       To show good cause as required by Evidence Code section 1043, defense

counsel’s declaration in support of the motion must propose a defense or defenses to the

pending charges, and must articulate how the discovery sought may lead to relevant

evidence or may itself be admissible direct or impeachment evidence. (Warrick v.

Superior Court, supra, 35 Cal.4th at p. 1024; see also, Garcia v. Superior Court (2007)

42 Cal.4th 63, 71.) Counsel’s affidavit must also describe a factual scenario supporting

the claimed officer misconduct. (Warrick, supra, at p. 1024.)




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       To obtain an in camera review, a defendant need only demonstrate that the

scenario of alleged officer misconduct could or might have occurred. (Warrick, supra, 35

Cal.4th at pp. 1016, 1026.) Depending on the circumstances of the case, a denial of the

facts asserted in the police report may constitute a sufficient factual allegation in a

Pitchess motion. (Warrick, at pp. 1024-1025.)

       A motion for discovery of peace officer personnel records is addressed to the

sound discretion of the trial court. (People v. Breaux (1991) 1 Cal.4th 281, 311.)

Consequently, a trial court’s decision on the discoverability of material in police

personnel files is reviewable under an abuse of discretion standard. (Uybungco v.

Superior Court (2008) 163 Cal.App.4th 1043, 1049.)

              c.     Analysis

       The precise question presented here is whether a court is limited to reviewing the

affidavit or declaration submitted by counsel in support of a Pitchess motion to determine

the legal sufficiency of the moving party’s showing of good cause for discovery, or

whether the court can consider additional information included in the memorandum of

points and authorities. In most of the published decisions addressing the question of the

adequacy of the defendant’s showing in support of the Pitchess motion, the only factual

showing offered to support good cause was found in counsel’s affidavit or a declaration.2




       2 A valid declaration has the same “force and effect” as an affidavit administered
under oath. (Garcia v. Superior Court, supra, 42 Cal.4th at p. 70, fn. 7, citing
Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 610.)


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          However, in Warrick, the California Supreme Court addressed the adequacy of an

affidavit submitted in support of a Pitchess motion that had been deemed inadequate to

justify an in camera hearing, and concluded the declaration, read in light of the police

reports and other pertinent documents, was adequate. There, in dicta, the Court, after

reviewing prior cases addressing the adequacy of the affidavit or declaration, observed

that “[i]n other cases, the trial court hearing a Pitchess motion will have before it defense

counsel’s affidavit, and in addition a police report, witness statements, or other pertinent

documents. The court then determines whether defendant’s averments, ‘[v]iewed in

conjunction with the police reports’ and any other documents, suffice to ‘establish a

plausible factual foundation’ for the alleged officer misconduct and to ‘articulate a valid

theory as to how the information sought might be admissible’ at trial.” (Warrick, supra,

35 Cal.4th at p. 1025, quoting City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at

p. 86.)

          The reasoning of Warrick suggests that the trial and reviewing courts are not

limited to reviewing the affidavit or declaration in making a determination of the

adequacy of the good cause showing. We have found no other cases suggesting that a

trial court is barred from considering factual information from sources de hors the

declaration. But a rule requiring a trial court to measure the adequacy of the good cause

showing by resorting exclusively to the declaration or affidavit of counsel, to the

exclusion of other relevant information presented in the motion, would be inconsistent

with the policy favoring “relatively relaxed standards” that serve to insure production for



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trial court review of all potentially relevant documents. (See City of Santa Cruz v.

Municipal Court, supra, 49 Cal.3d at p. 84.)

       Here, trial counsel presented additional factual information relating to the

proposed defense of excessive force, albeit the information was included in the points and

authorities, rather than in the declaration. To ignore that information simply because it

was not contained in the declaration would elevate form over substance.

              d.      Remedy

       As explained in People v. Gaines (2009) 46 Cal.4th 172, 180, 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. (See also, Pen. Code, § 1260 [reviewing court “may, if proper, remand the

cause to the trial court for such further proceedings as may be just under the

circumstances”].)

       A conditional reversal is appropriate because “it would make no sense to reverse a

judgment for a new trial ‘if it turns out after discovery is granted [at the retrial] that the

personnel files contain no evidence to support the defendant's claim.’” (Gaines, supra,

46 Cal.4th at p. 181 fn. 2, citing People v. Memro (1985) 38 Cal.3d 658, 708, conc. & dis.

opn. of Grodin, J.)

       After reviewing the confidential materials in chambers, the trial court may

determine that the requested personnel records contain no relevant information. (Gaines,



                                               10
supra, 46 Cal.4th at p. 181.) In that circumstance, the trial court may reinstate the

judgment. If the trial determines on remand that relevant information exists and should be

disclosed, the trial court “‘must order disclosure, allow [defendant] an opportunity to

demonstrate prejudice, and order a new trial if there is a reasonable probability the

outcome would have been different had the information been disclosed.’” (Gaines,

supra, 46 Cal.4th at p. 181; see also, People v. Moreno (2011) 192 Cal.App.4th 692, 703

[Fourth Dist., Div. Two].)

       2.     There Is Substantial Evidence to Support the Convictions for Possession of

the Firearm and Possession of Ammunition By a Prohibited Person.

       Defendant argues there is insufficient evidence to support his convictions for

possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), and possession of

ammunition by a person prohibited from possessing a firearm. (Pen. Code, § 30305,

subd. (a).) We disagree.

       We assess the sufficiency of evidence by reviewing the entire record in the light

most favorable to the judgment to determine whether it discloses evidence that is

reasonable, credible, and of solid value such that a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557,

578; see also, Jackson v. Virginia (1979) 443 U.S. 307, 319-320 [99 S.Ct. 2781, 61

L.Ed.2d 560].) If the verdict is supported by substantial evidence, we are bound to give

due deference to the trier of fact and not retry the case ourselves. (People v. Snow (2003)

30 Cal.4th 43, 66.) “[W]e do not reevaluate the credibility of witnesses or resolve factual



                                             11
conflicts; rather, we presume the existence of every fact in support of the verdict that

could reasonably be inferred from the evidence.” (People v. Booker (2011) 51 Cal.4th

141, 173.)

       Penal Code section 29800, subdivision (a)(1) (formerly Pen. Code, § 12021, subd.

(a)(1)), prohibits any person who has been convicted of a felony from owning, possessing

a firearm, or having a firearm in his or her possession, or under his or her custody or

control. The elements of this offense are conviction of a felony and ownership or

knowing possession, custody, or control of a firearm. (People v. Blakely (2014) 225

Cal.App.4th 1042, 1052.) Similarly, Penal Code section 30305, subdivision (a), prohibits

any person who is prohibited from possessing a firearm from possessing ammunition.

       Possession may be actual or constructive. (In re Daniel G. (2004) 120

Cal.App.4th 824, 831.) A defendant possesses a weapon while it is under his dominion

and control. (People v. Pena (1999) 74 Cal.App.4th 1078, 1083.) A defendant also has

actual possession when the weapon is in his immediate possession or control. (Ibid.) A

defendant has constructive possession when the weapon, while not in his actual

possession, is nonetheless under his dominion and control, either directly or through

others. (Id. at pp. 1083-1084.) More than one person may possess the same weapon.

(People v. Miranda (2011) 192 Cal.App.4th 398, 410.) “Possession may be imputed

when the contraband is found in a place which is immediately accessible to the joint

dominion and control of the accused and another.” (Id. at p. 410.)




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       A firearm (and ammunition) can be under a person’s dominion and control without

it being available for use, such as where it is in his or her residence even when the

defendant is not present. (People v. Blakely, supra, 225 Cal.App.4th at p. 1052.)

Evidence of a gun found protruding from the center portion of the floorboard, under the

front seat of a defendant’s car at a time when he was driving supports a finding of

constructive possession, custody or control. (People v. Nieto (1966) 247 Cal.App.2d 364,

367, 368.)

       In Nieto, a firearm was found under the central part of the front seat of the car

which the defendant was driving. The passenger testified that the gun was his and the

defendant testified that he did not know about the gun. Nevertheless, the court found the

presence of the gun under the front seat, together with the defendant’s admission that he

lied when police asked for the passenger’s name, constituted substantial circumstantial

evidence that the defendant was in possession of the gun. (People v. Nieto, supra, 247

Cal.App.2d at pp. 366–367.)

       In People v. Miranda, supra, 192 Cal.App.4th 398, defendant was in a vehicle

involved in a police pursuit. A police officer saw unidentifiable objects being thrown out

of the back windows of the vehicle during the pursuit and later, along the pursuit route,

pieces of a shotgun were found. The condition of these pieces was consistent with having

been thrown from a moving vehicle. Based on this evidence, the reviewing court

concluded it was reasonable for the jury to infer that the defendant and the others were




                                             13
aware of its presence and that defendant had at least joint dominion and control over the

shotgun before it was tossed out of the car window. (Id. at pp. 410-411.)

       Here, the firearm was found on the floorboard of the truck on the passenger’s side,

and the ammunition was found on the ground outside the truck. While the weapon in the

present case was not a shotgun, it was for the jury to decide whether the defendant was

aware of the gun, or exercised joint dominion and control. There is evidence that the gun

was accessible to defendant on the floorboard near the passenger’s seat. There is

substantial evidence to support the convictions for counts 3 and 4.

                                           DISPOSITION

       The judgment is conditionally reversed. Upon request by defendant following

remand, the trial court shall conduct an in camera review of the discoverable material in

the personnel files of the officers named in the motion. If the trial court’s inspection

reveals no relevant information, the trial court must reinstate the judgment of conviction

and sentence. If the inspection reveals relevant information, the trial court must order

disclosure, allow defendant an opportunity to demonstrate prejudice, and order a new trial

if there is a reasonable probability the outcome would have been different had the

information been disclosed. In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




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                        RAMIREZ
                                  P. J.
We concur:

HOLLENHORST
              J.

CODRINGTON
              J.




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