Filed 4/20/16




                       CERTIFIED FOR PARTIAL PUBLICATION*


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIFTH APPELLATE DISTRICT



THE PEOPLE,
                                                                        F069533
        Plaintiff and Respondent,
                                                            (Super. Ct. No. CRM028533B)
                  v.

MARC LYNDS REID II,                                                   OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Merced County. Mark V.
Bacciarini, Judge.
        William C. Whaley, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.




*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts III. and IV.
       Defendant Marc Lynds Reid II challenges his multiple felony convictions arising
from his theft of nine metal urns containing the cremated remains of 11 people.
Defendant was charged in an amended information with 23 felonies: 11 counts of
removal of human remains from the place of interment in violation of Health and Safety
Code1 section 7052, subdivision (a) (counts 1 through 11); 11 counts of grand theft in
violation of Penal Code section 487, subdivision (a) (counts 12 through 22); and one
count of vandalism in violation of Penal Code section 594, subdivision (b)(1) (count 23).
The amended information further alleged that defendant suffered four prison priors
pursuant to Penal Code section 667.5, subdivision (b), and a prior serious felony pursuant
to the three strikes law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).
       A jury convicted defendant of all 23 counts, and defendant then admitted the four
prison priors and the strike conviction. The trial court sentenced defendant to three years
(upper term) on count 1, doubled to six years for the strike; ten 16-month terms for
counts 2 through 11 (one-third of middle term, doubled); a 16-month term for the
vandalism (count 23); and one-year terms for each of the four prison priors, for a
determinate term of 24 years 8 months. Defendant was sentenced on the grand theft
counts and the sentences were stayed pursuant to Penal Code section 654, subdivision (a).
       On appeal, as to his convictions for removing human remains from the place of
interment (counts 1 through 11), defendant argues (1) conviction on more than one count
was improper as a matter of law because the removals were pursuant to one intention, one
general impulse, and one plan; (2) the statute is ambiguous and the rule of lenity requires
reversal of 10 of the 11 counts; and (3) punishing him for multiple counts violates the
double jeopardy clause of the Fifth Amendment of the United States Constitution. As to
his convictions for grand theft (counts 12 through 22), defendant argues (1) conviction on


1       All further statutory references are to the Health and Safety Code unless otherwise
indicated.


                                                2.
more than one count was improper as a matter of law because the thefts were pursuant to
one intention, one general impulse, and one plan; and (2) there was insufficient evidence
to support two of the 11 counts because only nine urns were stolen. Defendant also
argues the trial court erred under Penal Code section 654 when it punished him for both
removing human remains and vandalism. Finally, defendant argues the trial court erred
in denying his Pitchess motion.2
       We affirm the judgment on the removal of human remains counts, reverse the
judgment on two of the 11 grand theft counts, affirm the judgment on nine counts of
grand theft, and stay the sentence for the vandalism count. We also find the trial court
erred in denying the Pitchess motion and conditionally reverse so the trial court can
conduct an in camera review.
                                  FACTUAL SUMMARY
       Sometime during the night of May 7, 2013, or the early morning hours of May 8,
2013, defendant entered a semi-open mausoleum building at the Evergreen Funeral Home
at Memorial Park in Merced. He broke into nine urn niches located in one of the
mausoleum walls by smashing the glass panes enclosing each niche. Defendant then
removed nine metal urns, each weighing approximately 25 pounds and collectively
containing the cremated remains of 11 people.3 After removing the urns from the
mausoleum, defendant stashed them outside. Between approximately 4:00 a.m. and
5:00 a.m. on May 8, 2013, defendant returned to the cemetery area in a van driven by an
accomplice and he loaded the urns into the van. The urns were later broken down into
scrap metal for recycling and the cremated remains of the 11 deceased were discarded.




2      Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
3       Three of the nine urns were double urns intended to hold the remains of two people and,
of those three, two contained two sets of remains and one contained one set of remains.


                                               3.
       Defendant was arrested for the crimes months later after a friend of his went to the
cemetery in July 2013 and informed staff they should “‘check into’” defendant regarding
the missing urns. Neither the urns nor the cremated remains were recovered.
                                        DICUSSION
I.     Removal of Human Remains from Place of Interment
       A.     Extension of Bailey4 Rule to Removal of Human Remains
       Section 7052, subdivision (a), provides, “Every person who willfully … disinters
[or] removes from the place of interment … any remains known to be human, without
authority of law, is guilty of a felony.” In what appears to be an issue of first impression,
defendant argues on appeal that pursuant to the holdings articulated in People v. Smith
(1945) 26 Cal.2d 854 (Smith) and Bailey, supra, 55 Cal.2d 514, he cannot be convicted of
more than one count of removing human remains from the place of interment because the
removal was “one-occasion one-offense” under Smith and “one-plan one-offense” under
Bailey. Although he concedes the lack of authority for his position, defendant contends
that extension of these rules is appropriate as a matter of law given “the offense of
removing human remains is essentially larceny of a particular type of property—human
remains.”
       The Smith case involved receipt of stolen property, in the form of automobile
radios. (Smith, supra, 26 Cal.2d at pp. 855–856.) In articulating the rule that receipt of
stolen goods in a single transaction is a single offense, regardless of whether the goods
were stolen from multiple victims, the California Supreme Court reasoned: “The gist of
the offense is the purchase or receipt of the stolen goods with guilty knowledge but the
particular ownership of the goods is not an element of the crime. Neither the legal nor
moral character of the act is affected in any way by the fact that the stolen property may
have belonged to several persons rather than to a single person.” (Id. at p. 859.)


4      People v. Bailey (1961) 55 Cal.2d 514 (Bailey).


                                              4.
       The subsequent decision in Bailey arose out of the defendant’s conviction for
grand theft based on the unlawful taking of welfare benefits from the county over a
period of approximately 17 months. (Bailey, supra, 55 Cal.2d at pp. 515–516.) The sum
received each month by the defendant constituted petty theft but if aggregated, the sums
amounted to grand theft. (Id. at p. 518.) The California Supreme Court held the jury was
properly instructed that the sums could be aggregated, and it articulated the test for
“determining if there were separate offenses or one offense [as] whether the evidence
discloses one general intent or separate and distinct intents.” (Id. at p. 519.) It explained
that “[w]hether a series of wrongful acts constitutes a single offense or multiple offenses
depends upon the facts of each case, and a defendant may be properly convicted upon
separate counts charging grand theft from the same person if the evidence shows that the
offenses are separate and distinct and were not committed pursuant to one intention, one
general impulse, and one plan. [Citation.]” (Ibid.)
       The Smith and Bailey cases articulated the same general principle regarding a
single offense or transaction versus multiple offenses or transactions, but Smith applied it
to the receipt of stolen property while Bailey applied it to theft. (Smith, supra, 26 Cal.2d
at pp. 858–859; Bailey, supra, 55 Cal.2d at p. 519.) The two crimes are “separate and
distinct.” (Smith, supra, at p. 859.) Given the nature of defendant’s crimes, to the extent
one of these rules is subject to extension by analogy to the removal of human remains, it
is the Bailey theft rule. It is therefore unnecessary to address further defendant’s separate
argument regarding extension of Smith.
       We are not persuaded Bailey should be extended. First, human remains have not
been treated as property under the law, and we reject defendant’s characterization of them
as such. (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 221; Enos v.
Snyder (1900) 131 Cal. 68, 69.) While “courts have recognized that next of kin have a
temporary, quasi-property right in the body of a deceased for purposes of burial or other
disposition,” that limited category has no application to the crime committed by

                                              5.
defendant. (Spates v. Dameron Hospital Assn., supra, at p. 221; O’Donnell v. Slack
(1899) 123 Cal. 285, 289.)
       Nor is the removal of human remains from their places of interment morally akin
to property crimes such as receiving stolen automobile radios or stealing welfare benefits.
Section 7052 was enacted to address the specific common law crime of “‘body-
snatching’” (People v. Baumgartner (1901) 135 Cal. 72, 74), and such “statutes
governing the disposition of human remains exist not only to ensure removal of dead
bodies and protect public health, but also to prevent invasion of the religious, moral, and
esthetic sensibilities of the survivors” (Christensen v. Superior Court (1991) 54 Cal.3d
868, 893). Courts have long recognized the dignity and respect society affords the dead
and their survivors. (See id. at pp. 893–894, 896–898 [discussing policy of recognizing
dignified, respectful treatment of the dead]; Walsh v. Caidin (1991) 232 Cal.App.3d 159,
164 [recognizing case law is sensitive to outrage of survivors]; People v. Vick (1970) 11
Cal.App.3d 1058, 1064–1065 [recognizing societal respect extended to the dead and their
families]; People v. Baumgartner, supra, at p. 74 [describing act of breaking into coffin
and searching the deceased for money as “highly reprehensible”]; O’Donnell v. Slack,
supra, 123 Cal. at p. 289 [duty toward dead “‘imposed by the universal feelings of
mankind’”].)
       In this case, the cremated remains of 11 people are irretrievably gone, willfully
removed from their places of interment, and then discarded by defendant so he could
recycle the metal urns in which they were laid to rest for scrap value.5 The crime
proscribed by section 7052—abuse of the dead—is not analogous to larceny. Moreover,
crimes against remains of the dead have attendant public health and moral concerns not



5      The urns had plaques bearing the names of the individuals inurned therein and no
reasonable individual would have been confused or misled regarding what the urns contained or
how many people were interred therein. Defendant does not contend otherwise.


                                              6.
presented by crimes of larceny.6 We therefore reject defendant’s argument that the
Bailey rule is subject to extension as matter of law to the removal of human remains from
their place of interment.
       B.      Rule of Lenity
       Defendant next argues that the rule of lenity prohibits his multiple convictions for
willfully removing human remains because the word “any” in the statute is ambiguous.
(§ 7052, subd. (a).) The gist of defendant’s argument is that because the word “any” can
be singular or plural, the statute is ambiguous as to the unit of prosecution, and the
Legislature could have but did not choose the word “each.”
       “The rules governing statutory construction are well settled. We begin with the
fundamental premise that the objective of statutory interpretation is to ascertain and
effectuate legislative intent. [Citations.] To determine legislative intent, we turn first[] to
the words of the statute, giving them their usual and ordinary meaning. [Citations.]
When the language of a statute is clear, we need go no further. However, when the
language is susceptible of more than one reasonable interpretation, we look to a variety of
extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied,
the legislative history, public policy, contemporaneous administrative construction, and
the statutory scheme of which the statute is a part. [Citations.]” (People v. Flores (2003)
30 Cal.4th 1059, 1063.)
       “[T]he ‘touchstone’ of the rule of lenity ‘is statutory ambiguity.’ [Citation.]”
(Bifulco v. United States (1980) 447 U.S. 381, 387.) “‘The rule … applies only if the
court can do no more than guess what the legislative body intended; there must be an

6      Codefendant Richard Madsen and defendant’s friend, Crystal Febbie, both testified as to
the moral repugnance of the crime. Ms. Febbie also testified her deceased child’s cremated
remains had been inurned in a brass heart-shaped urn that was stolen, and the theft still caused
her emotional pain. It was these feelings regarding the repugnant nature of the crime that
eventually led Ms. Febbie to visit the cemetery and tell staff to “‘check into’” defendant. This
testimony clearly underscores the collective societal view regarding respectful treatment of the
dead and sensitivity toward their survivors.


                                               7.
egregious ambiguity and uncertainty to justify invoking the rule.’” (People v. Avery
(2002) 27 Cal.4th 49, 58.) “Where [the Legislature] has manifested its intention, [courts]
may not manufacture ambiguity in order to defeat that intent.” (Bifulco v. United States,
supra, at p. 387.) Additionally, “ambiguities are not interpreted in the defendant’s favor
if such an interpretation would provide an absurd result, or a result inconsistent with
apparent legislative intent. [Citation.]” (People v. Cruz (1996) 13 Cal.4th 764, 783.)
       In this case, we do not agree that the word “any” within the meaning of
section 7052 is ambiguous.7 While the meaning of “‘any’” is expansive (United States v.
Gonzales (1997) 520 U.S. 1, 5), it must be viewed in the linguistic and statutory contexts
rather than in isolation (Yates v. United States (2015) __ U.S. __, __ [135 S.Ct. 1074,
1081–1082]). In relevant part, the statute provides: “Every person who willfully …
removes from the place of interment … any remains known to be human, without
authority of law, is guilty of a felony.” (§ 7052, sub. (a), italics added.) The word “any”
modifies “remains,” and “‘remains’” or “‘[h]uman remains’” is defined as “the body of a
deceased person, regardless of its stage of decomposition, and cremated remains.”
(§ 7001.) The term “‘[c]remated remains,’” in turn, is defined as “the ashes and bone
fragments of a human body that are left after cremation in a crematory, and includes
ashes from the cremation container.” (§ 7002.)
       Thus, under the statute’s plain language, it is a felony to remove the cremated
remains of a human body from its place of interment. In this case, 11 bodies were
cremated, inurned in metal urns, and interred in urn niches.8 Given the absence of


7        Defendant’s reliance on People v. Rowland (1999) 75 Cal.App.4th 61 and People v. Kirk
(1989) 211 Cal.App.3d 58 is misplaced. Those cases involved possession statutes. Section 7052
is distinguishable in that it is directed not at unlawful possession but at unlawfully disturbing
human remains, be it through mutilation, disinterment, removal of remains from the place of
interment, or sexual contact with remains. (§ 7052, subd. (a).)
8      “‘Interment’ means the disposition of human remains by entombment or burial in a
cemetery or, in the case of cremated remains, by inurnment, placement or burial in a cemetery, or

                                               8.
statutory ambiguity, defendant’s attempt to invoke the rule of lenity is rejected. Even if
we were to assume the statute is ambiguous regarding the word “any,” however, the
ambiguity is not “egregious” and does not justify invocation of the rule. (People v. Boyce
(2014) 59 Cal.4th 672, 695.) A contrary reading of the statute that the word “any” is
always ambiguous, as urged by defendant, would indeed lead to “an absurd result.”
(People v. Cruz, supra, 13 Cal.4th at p. 783.)
       C.     Double Jeopardy
       “The Double Jeopardy Clause ‘protects against a second prosecution for the same
offense after acquittal. It protects against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for the same offense.’
[Citation.]” (Brown v. Ohio (1977) 432 U.S. 161, 165.) Relying on the third category,
defendant argues that multiple punishments for a single count of removing human
remains violates the double jeopardy clause of the Fifth Amendment.
       We have rejected defendant’s argument that the removal of 11 sets of human
remains results in only a single felony conviction. Defendant’s argument that he was
punished 11 times for a single count is also rejected.
II.    Grand Theft of Urns
       A.     Insufficient Evidence as to Two Counts
       Preliminarily, defendant challenges his conviction for 11 rather than nine counts of
grand theft. He contends, and respondent agrees, that because only nine metal urns were
stolen and the People did not introduce evidence the human remains had any value, there
is insufficient evidence to support more than nine counts of grand theft.9
       We agree that the conviction of two counts of grand theft must be vacated.


burial at sea as provided in Section 7117” (§ 7009), and “‘[i]nurnment’ means placing cremated
remains in a cremated remains container suitable for placement, burial, or shipment” (§ 7011).
9       A cemetery employee valued each urn between $1,500 and $2,000, and the parties
stipulated the thefts were grand thefts as a matter of law.


                                              9.
       B.     Application of Bailey Rule to Urn Thefts
       Defendant next argues the Bailey rule also applies to his theft convictions and only
one conviction is proper as a matter of law given the thefts occurred “on the same
occasion pursuant to the same plan.” Respondent argues the Bailey rule does not apply to
cases involving multiple theft victims.
       We apply the Bailey rule “as a matter of law only in the absence of any evidence
from which the jury could have reasonably inferred that the defendant acted pursuant to
more than one intention, one general impulse, or one plan. [Citation.]” (People v. Jaska
(2011) 194 Cal.App.4th 971, 984, fn. omitted.) We are not persuaded it applies as a
matter of law to these facts.
       In People v. Whitmer (2014) 59 Cal.4th 733 (Whitmer), the California Supreme
Court revisited the Bailey rule given the conflicting and broad interpretations of the rule
by the Courts of Appeal. Whitmer involved the manager of a motorcycle dealership (the
defendant) who fraudulently sold 20 different vehicles, costing the dealership more than
$250,000. (Whitmer, supra, at p. 735.) He was convicted of 20 counts of grand theft,
one for each vehicle, and he argued on appeal that he could only be convicted of one
count of grand theft under the Bailey rule. (Whitmer, supra, at pp. 735–736.) The Court
of Appeal disagreed and affirmed the convictions but, in doing so, urged the Supreme
Court to revisit Bailey. (Whitmer, supra, at p. 736.) The Supreme Court did so and,
concluding Bailey had been misinterpreted in a long line of cases, clarified that “a
defendant may be convicted of multiple counts of grand theft based on separate and
distinct acts of theft, even if committed pursuant to a single overarching scheme” and it
disapproved any inconsistent interpretation. (Whitmer, supra, at p. 741.) However, given
the line of Court of Appeal cases “consistently [holding] that multiple acts of grand theft
pursuant to a single scheme cannot support more than one count of grand theft,” the court
concluded that its holding was “an unforeseeable judicial enlargement of criminal
liability for multiple grand thefts.” (Id. at p. 742.) As a result, the Bailey rule as clarified

                                              10.
by Whitmer did not apply retroactively to the defendant, and he could not be convicted of
more than one count of grand theft. (Whitmer, supra, at p. 742.) Although we conclude
Bailey does not apply here, we agree with the parties that our decision must necessarily
be based on the law prior to Whitmer.
       Bailey involved multiple thefts from a single victim, as did Whitmer. (Whitmer,
supra, 59 Cal.4th at p. 735; Bailey, supra, 55 Cal.2d at p. 515.) We previously
considered application of the Bailey rule in a case involving vandalism to the property of
multiple victims during a one-night tagging spree. (In re David D. (1997) 52 Cal.App.4th
304 (David D.) We considered whether to extend the Bailey rule, which had generally
been applied to theft cases, to vandalism. (David D., supra, at p. 309.) The issue was not
expressly resolved because we determined that assuming the Bailey rule would apply in
vandalism cases, it did not apply where “each tagging incident clearly represent[ed] a
separate offense affecting a different victim.”10 (David D., supra, at p. 311.) We
recognized the rule had been generally limited “to thefts involving a single victim.” (Id.
at p. 309, fn. omitted.) We found only two cases in 35 years in which Bailey had been
applied to thefts from multiple victims, and we noted those two cases were “articulately
criticized” in People v. Garcia (1990) 224 Cal.App.3d 297, 308–309, on the ground they
“cited Bailey to prohibit multiple punishments for a single offense committed
incrementally,” which was “not the essence of the Bailey doctrine.”11 (David D., supra,
at p. 310.) We noted that Bailey itself “presupposes a single victim” and “one limitation
of the Bailey doctrine is its inapplicability to offenses involving multiple victims.”
(David D., supra, at pp. 309–310.)


10    The Bailey rule was subsequently explicitly extended to vandalism cases in People v.
Carrasco (2012) 209 Cal.App.4th 715, 719–720 (Carrasco) and In re Arthur V. (2008) 166
Cal.App.4th 61, 67 (Arthur V.).
11    The cases applying Bailey to multiple victims were People v. Brooks (1985) 166
Cal.App.3d 24 and People v. Columbia Research Corp. (1980) 103 Cal.App.3d Supp. 33.


                                             11.
       Our decision in David D. was also influenced by People v. Church, in which a
defendant challenged his multiple theft convictions arising out of thefts from four
separate offices within the same building. (People v. Church (1989) 215 Cal.App.3d
1151, 1158–1159 (Church), disapproved on other grounds in People v. Bouzas (1991) 53
Cal.3d 467, 477–480.) In Church, the court found the evidence supported the
prosecution’s theory that “the entries into and thefts from the four separately leased and
locked offices amounted to crimes against four separate interests and therefore
represented separate offenses.” (Church, supra, at p. 1159.) The court reasoned that
“[f]our separate businesses were forcibly entered and ransacked” and “[a]lthough the
crimes were committed in a single episode, they represented separate intrusions into the
privacy of separate victims and were validly chargeable as distinct offenses.” (Ibid.)
       Defendant argues that to the extent a multiple victims exception to the Bailey rule
was recognized, it was later rejected in Carrasco, supra, 209 Cal.App.4th 715 and
Arthur V., supra, 166 Cal.App.4th 61. We are not persuaded that is so. While the Bailey
rule was applied in Carrasco to aggregate vandalism damages, the case involved two
successive acts of vandalism arising out of a juvenile’s anger at his mother. One act was
directed at the car she owned and the other was directed at the house she was residing in.
Although there were multiple victims by virtue of the fact the home was owned by the
juvenile’s father, the circumstances are more analogous to those involving a single victim
because the juvenile’s mother was residing in the house. As the court noted, the
juvenile’s acts of vandalism resulted from “a single angry impulse directed toward his
mother[] .…” (Carrasco, supra, at p. 717.)
       The other case cited by defendant, Arthur V., is inapposite. The case involved
damage to a windshield and a cellphone screen during the same incident, and the car and
the phone were both owned by the same victim. Although the court extended Bailey to
vandalism cases in Arthur V., its determination did not turn on a single victim versus



                                            12.
multiple victims distinction, and we find the facts of that case neither remarkable nor
analogous to the facts in this case.
       As in David D., resolution of the issue in this case does not require articulation of
an absolute rule regarding Bailey and a single victim versus multiple victims. (David D.,
supra, 52 Cal.App.4th at p. 309, fn. 3.) Rather, application of the Bailey rule requires
consideration of the facts unique to each case. (Bailey, supra, 55 Cal.2d at p. 519.) The
prior decisions in David D. and Church are the most instructive here, as they involved
crimes against multiple victims that occurred during a single crime spree. Although the
nine urns were stolen from the mausoleum during a single crime spree, each urn was
contained in a separate niche covered by its own pane of glass. Each urn was heavy and
required both hands to lift and carry it, with the double urns being sufficiently heavy to
require being “walk[ed]” along the floor. As a result, the theft required defendant to
break each pane of glass and remove each urn individually. Each urn then had to be
moved out of the building and stashed one at a time. Additionally, the urns were
purchased separately and were the property of separate victims, a fact that was apparent
given the separate niches and the metal identification plaques on the urns.12
       Thus, the thefts constituted “crimes against [nine] separate interests and therefore
represented [nine] separate offenses.”13 (Church, supra, 215 Cal.App.3d at p. 1159.)


12       Defendant’s argument that there was insufficient evidence on this point was raised for the
first time in his reply brief and is rejected in any event. The People introduced evidence as to the
purchase of each niche and urn, without objection, and that evidence was sufficient to establish
separate ownership.
13      This conclusion draws further support from the California Supreme Court’s recent
decision in People v. Garcia (2016) 62 Cal.4th 1116, 1119–1120, a case in which the defendant
challenged his two burglary convictions based on his entry into a store to commit robbery
followed by his entry into the store’s bathroom to commit rape. The court held “the evidence of
the bathroom’s location and characteristics is insufficient to show that it provided to its
occupants a separate and reasonable expectation of protection from intrusion and danger, beyond
that provided by the shop itself.” (Id. at p. 1120.) In reaching its conclusion, the court addressed
with approval numerous cases, including Church, that, on their facts, supported multiple burglary
convictions. (People v. Garcia, supra, at pp. 1127–1128.) The court recognized, as a common

                                                13.
Accordingly, we reject defendant’s argument that the Bailey rule applies as a matter of
law and requires reversal of all but one of his grand theft convictions.
       Judgment is affirmed as to nine counts of grand theft.
III.   Sentence for Vandalism Count*
       Defendant also argues that Penal Code section 654, subdivision (a), prohibits his
separate punishment for vandalism because both the vandalism and the removal of human
remains arose from the same underlying act. Respondent agrees.
       We accept the concession. “An act or omission that is punishable in different
ways by different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” (Pen. Code, § 654, subd. (a).) The statutory
purpose “is to ensure that a defendant’s punishment will be commensurate with his
culpability.” (People v. Correa (2012) 54 Cal.4th 331, 341.) Here, the vandalism count
arose out of defendant’s action in breaking the glass sealing the urn niches and damaging
the rosettes in the process, a course of conduct that preceded, and was necessary to,
defendant’s removal of the urns containing the human remains. The trial court, therefore,
erred in punishing defendant twice for the same act and the vandalism sentence is ordered
stayed pursuant to section 654. (People v. Jones (2012) 54 Cal.4th 350, 354.)
IV.    Denial of Pitchess Motion*
       Following the preliminary hearing, defendant filed a Pitchess motion seeking
review of Detective Paul Johnson’s personnel records. (Pitchess, supra, 11 Cal.3d 531.)


thread, that “the invaded rooms had characteristics that a reasonable person would understand to
signify a separate possessory interest or a heightened degree of protection against significant
intrusions from outsiders.” (Id. at p. 1128.) For the reasons we have articulated, that common
thread is echoed here as well, where the theft of each urn from its niche invaded a separate
owner’s interest. (Ibid.)
*      See footnote, ante, page 1.
*      See footnote, ante, page 1.


                                              14.
The trial court summarily denied the motion. On appeal, defendant argues his motion
satisfied the threshold showing of good cause for discovery and he requests the case be
remanded to the trial court for an in camera review of Johnson’s personnel records.
Respondent does not dispute that good cause existed to conduct an in camera review, but
argues remand is unnecessary because the error is harmless.
       We review the trial court’s ruling under the abuse of discretion standard. (People
v. Cruz (2008) 44 Cal.4th 636, 670.)
       “[O]n a showing of good cause, a criminal defendant is entitled to discovery of
relevant documents or information in confidential personnel records of a peace officer
accused of misconduct against the defendant. [Citation.]” (People v. Gaines (2009) 46
Cal.4th 172, 179 (Gaines).) To show good cause, a defendant must demonstrate “both
‘“materiality” to the subject matter of the pending litigation and a “reasonable belief” that
the agency has the type of information sought.’ [Citation.]” (Ibid.) This threshold
requirement is “‘relatively low.’” (People v. Samuels (2005) 36 Cal.4th 96, 109.) “[A]
defendant need demonstrate only ‘a logical link between the defense proposed and the
pending charge’ and describe with some specificity ‘how the discovery being sought
would support such a defense or how it would impeach the officer’s version of events.’
[Citation.]” (Gaines, supra, at p. 182.) If a defendant shows good cause, the trial court is
required to conduct an in camera review of the records and disclose any relevant
information. (Id. at p. 179.) “[W]hen a trial court has failed to review the Pitchess
documents at all, it is appropriate to remand the case to permit the trial court to review
the requested documents in chambers and to issue a discovery order, if warranted.” (Id.
at pp. 180–181, fn. omitted.)
       Defendant sought an in camera review of Detective Johnson’s personnel records
following testimony at the preliminary hearing regarding Johnson’s coercion of witness
Jason Baker. Baker had inculpated defendant during an interview with Johnson but,
during the preliminary hearing, he testified he was coerced into doing so by Johnson.

                                             15.
Johnson was the primary investigator assigned to defendant’s case and defendant sought
discovery of any records pertaining to Johnson’s coercion, intimidation, or attempt to
influence any party to any investigation.
       There is no dispute between the parties regarding defendant’s showing of good
cause for the discovery sought, and we agree defendant met “[t]he relatively low
threshold.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 94.) The trial
court was therefore required to conduct an in camera review to determine whether any
information in Detective Johnson’s personnel records was subject to disclosure. (Gaines,
supra, 46 Cal.4th at pp. 180–181.) Respondent’s argument that no relief is warranted
because there was no prejudicial error is premature. (Id. at p. 181.) The trial court’s
determination regarding disclosure “is not akin to the inquiry into whether a particular
error in denying discovery was prejudicial” and a defendant is entitled to disclosure of
relevant information, “even in the absence of any judicial determination that the potential
defense is credible or persuasive.” (Id. at p. 182.) On remand, the trial court may
determine there is no relevant information to disclose or it may determine disclosure of
some information is warranted. However, defendant is entitled to that determination in
the first instance and, pursuant to the procedure articulated in Gaines, judgment must be
conditionally reversed so the trial court can conduct an in camera review of the records
and determine whether there is any information subject to disclosure. (Gaines, supra, at
pp. 180–181; Evid. Code, § 1045.)
                                     DISPOSITION
       Convictions on two of the 11 counts of grand theft are vacated, and judgment on
the remaining nine counts of grand theft is affirmed. The sentence on the vandalism
count is stayed. The trial court is directed to amend the abstract of judgment in
accordance with the foregoing and forward it to the appropriate authorities.




                                            16.
       The judgment is conditionally reversed and remanded to the trial court to conduct
an in camera review of Detective Johnson’s personnel records pursuant to the procedure
in Gaines, supra, 46 Cal.4th 172, and to order the disclosure of any relevant information.
If there is no discoverable information, the trial court shall reinstate the judgment and
sentence.


                                                          ___________________________
                                                                      KANE, Acting P.J.
WE CONCUR:


__________________________
POOCHIGIAN, J.


__________________________
FRANSON, J.




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