Filed 10/21/13 P. v. Woods CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B241041

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA379637)
         v.

LYNN WOODS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Ronald S. Coen, Judge. Conditionally reversed and remanded with directions.
         Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for
Plaintiff and Respondent.


                                        _________________________
                                    INTRODUCTION

       Defendant Lynn Woods was convicted of one count of first degree murder (Pen.
Code,1 § 187, subd. (a)) and two counts of possession of a firearm by a felon (§ 12021,
subd. (a)(1)). The jury also found true special allegations regarding firearm use
(§ 12022.53, subds. (b)-(d)). On appeal, Woods challenges his murder conviction on the
grounds that the trial court committed numerous instructional errors. Woods also
requests that we review the in camera proceedings conducted by the trial court pursuant
to his motion for production of documents under Pitchess v. Superior Court (1974) 11
Cal.3d 531 (Pitchess). While we reject Woods‟s claims of error, we conditionally reverse
the judgment and remand for a new Pitchess hearing.

                 FACTUAL AND PROCEDURAL BACKGROUND
I. The Charges
       Woods was charged by information with one count of murder (§ 187, subd. (a))
with special allegations that he personally and intentionally discharged a firearm causing
death (§ 12022.53, subds. (b), (c), and (d)). Woods was also charged with two counts of
being a felon in possession of a firearm (§ 12021, subd. (a)(1)). He pled not guilty to all
counts.

II. The Murder of Terrence Butler

       A. The Prosecution’s Case

1. The Physical Evidence
       At 2:33 a.m. on August 18, 2010, the Los Angeles Police Department (LAPD)
received a 911 call from a residence in the 1800 block of West 67th Street in Los
Angeles. LAPD officers responded within minutes, and discovered the body of Terrence
Butler lying face down in an alley between 67th and 68th Streets. Investigating the alley,
police recovered ten expended nine-millimeter shell casings and one fired bullet. Police

1      Unless otherwise indicated, all further statutory references are to the Penal Code.

                                             2
also found a golf club and an empty Gatorade bottle near the body. A fingerprint on the
bottle was matched to the right index finger of Sherman Smith. A blue Buick LeSabre
registered to Woods was parked at the south end of the alley.
      An autopsy disclosed that Butler sustained nine gunshot wounds, all of which
entered his body from behind. The absence of any soot or stippling around the entrance
wounds indicated the shooter was standing at least two or three feet away from Butler.
One fired bullet and various bullet fragments were recovered from Butler‟s body during
the autopsy.
      Firearms analysis determined the shell casings, bullets, and bullet fragments
recovered from the scene of the shooting and from the victim were fired from the same
nine-millimeter semiautomatic handgun.

2. Witness Testimony
      LAPD Detective David Ross testified that he arrived at the scene at approximately
4:00 a.m. His investigation led him to a residence at 1815 West 68th Street, where the
occupants were ordered out of the house. About seven or eight people exited the house,
including Raymond Young, Alicia Lewis, Colette Eldridge, Sherman Smith, and Uniquia
Watson. Woods was not there.
      At trial, Young, Lewis, and Eldridge testified for the prosecution. Anthony Young
had known Woods for about 25 years. On August 17, 2010, he went to the house at 1815
West 68th Street to get high. Young obtained some crack cocaine from Woods, who was
present at the house, and smoked it. Later, Young heard Butler knock at the front door
and ask to be let in. Woods said, “[D]on‟t let him in.” Butler continued to knock. After
about five minutes, someone let Butler inside.
      Butler then stood in the house with a golf club in his hand. Young heard Butler
say this “used to be his spot.” Woods replied, “Not anymore. This is where I‟m at now.”
Later, Young heard Woods say to Butler, “Come on man, let‟s me and you go outside
and talk.” The two men then walked out the front door.




                                            3
       Shortly thereafter, Young heard 10 to 15 gunshots. Woods returned to the house
holding a wrapped up jacket or sweater and handed it to Smith. Woods then turned off
the lights in the house and left. According to Young, Woods was picked up by someone
in a car.
       Following the incident, Young identified Woods in a six-pack photographic lineup
and told police he believed Woods was the person who had shot Butler.
       Alicia Lewis testified that Smith lived at the house at 1815 West 68th Street, and
that she stayed there three or four nights a week. According to Lewis, Woods began
coming to the house in August 2010. Prior to the night Butler was killed, Lewis heard
Woods tell Butler several times to stop coming to the house.
       On the night in question, Lewis was sleeping in the living room. She awoke
around 9:00 p.m. to find Butler inside the house. Butler had a conversation with someone
and then left. About 30 minutes later, Butler returned and stood in the middle of the
living room with a golf club in his hand. Lewis testified that Butler was “going off” and
“raising hell.” He was saying, “Fuck this shit, this is my neighborhood, nobody‟s gonna
tell me what I can do over here, I‟m going to make money where I want to make money
at.”
       According to Lewis, a young man spoke to Butler and then went to the back of the
house. Woods then approached Butler and said, “Let me have a word with you for a
moment.” Lewis went back to sleep. Lewis never saw Butler again; nor did she see
Woods return to Smith‟s house after that night. She testified that Woods called the house
the next day and asked her if the police had been there.
       After the incident, Lewis identified Woods in a six-pack photographic lineup and
told police Woods was the person who told Butler to go outside with him.
       Colette Eldridge testified that she was at the house on the night of the shooting.
Lewis had invited her there; she had never been to the house before. According to
Eldridge, there were eight to ten people at the house, including Woods who was sitting at
a table with a desktop computer. At one point, Eldridge saw a black semiautomatic



                                             4
handgun on the table. She also saw Woods holding the gun when he went to answer the
door.
        Eldridge testified that at about 10:30 p.m., a man came to the house and then left
with a woman. Sometime between midnight and 1:00 a.m., the man returned and
knocked at the front door, but the “people in charge of answering the door” did not
acknowledge his knocks. Eventually, Woods opened the door. The man was holding a
golf club and asked why it took so long to open the door. Woods said, “No, I don‟t have
to let you in.”
        Several minutes later, Woods asked the man to go outside to have a talk. Shortly
thereafter, Eldridge heard “loud noises, possibly gunshots.” Woods returned to the house
alone. He spoke to some people, including Smith, and then left.
        Eric Decelles also testified for the prosecution. Decelles had known Butler for
four or five years. He testified that he saw Butler near 68th and Western at
approximately 11:00 p.m. or midnight on the night he was killed. Butler was with his
“baby mama” and stood with a golf club in his hand. Decelles stated, “I asked him what
was up and he told me he was going to go in here and put hands on this person [Woods]
for disrespecting his baby mama.” Decelles did not see Butler again.

        B. The Defense Case

1. Witness Testimony
        Sherman Smith testified for the defense. In August 2010, he lived at 1815 West
68th Street with his fiancé, Uniquia Watson. According to Smith, other people would
come to the house and spend the night. Drugs were sold at the house on a regular basis.
At the time of the shooting, both Woods and Butler were in charge of the drug sales.
        Smith testified that Woods began coming to the house at the end of July and lived
there in August. Woods stayed in the computer room and had a nine-millimeter
semiautomatic weapon that he kept with him. Smith further testified that Butler began
coming to the house at the beginning of August and was there almost every day. Butler
was welcome at the house any time; Smith never had any “beef” with him.

                                              5
       On the night in question, Smith took some Seroquel and Vicodin to help him
sleep, and fell asleep at 9:00 or 10:00 p.m. He woke up at about 5:00 a.m. when police
arrived. According to Smith, Woods was not there and never returned to the house after
that night. Woods did not hand him an object wrapped in a shirt that night. On the
morning of August 18, 2010, Smith spoke to police and falsely told them he had spent the
night at a different location and arrived home at 5:00 or 6:00 a.m.
       Smith testified that the day after Butler was killed, a Hispanic man came to the
house and told him Woods had sent him there to buy his car. The man gave him $200
and took Woods‟s car. Smith also testified that he was diabetic and drank Gatorade when
his blood sugar level was low. As to the Gatorade bottle found in the alley with his
fingerprint, Smith said he might have tossed it in the alley because he was too lazy to put
it in the trash or he might have left it there while he was working on his car.
       Sharmeka Dunbar also testified for the defense. She first met Woods in 2007 or
2008 and dated him for several years. According to Dunbar, she and Woods went to
Smith‟s house a couple of times. Although Woods used drugs at the house, he never sold
drugs there. Dunbar testified that she saw Smith sell drugs at the house. She also
testified that Woods never lived at Smith‟s house.
       The defense called Claude Allen as a witness. He relayed that he did lighting and
electrical work and that from August 2010 to November 2010, Woods had worked on
some jobs with him. The jobs required “six, eight-hour days.” Allen testified that he
never saw Woods sell drugs.

2. Woods‟s Testimony
       Woods testified in his defense. In 2010, he was having problems with Latasha
Bradley, the mother of his son. According to Woods, Bradley threatened that she would
do everything she could to have him locked up. Woods became depressed and stressed,
and started doing drugs.
       Woods testified that in August 2010, he began going to Smith‟s house to hide
away and to use drugs. Woods never lived at Smith‟s house and never sold drugs there.


                                              6
He did not need to sell drugs because he made a living doing music and selling animals.
According to Woods, Smith was the person who sold most of the drugs at the house.
Smith also had women at the house who were prostitutes.
      Woods testified that he knew Butler as someone who would come to Smith‟s
house and “chase the females out.” The people who controlled the house, including
Smith, disliked Butler and did not want him there. According to Woods, there was
jealousy and hate because Butler “mostly controlled that area.” Woods relayed that
Butler “would get upset and angry at times…about the people that was selling drugs there
because he was in the area before they was, and that‟s what the main issue occurred at.”
That issue had nothing to do with Woods; he never had any problems with Butler.
      On August 17, 2010, Woods arrived at Smith‟s house at approximately 8:00 or
9:00 p.m. There were a lot of people at the house, and Woods went to work on the
computer. While he used the computer, there was a meeting at the back of the house,
which did not concern him and which he did not attend.
      At some point, Butler arrived and took a woman out of the house to prostitute for
him. Butler returned to the house at about 1:00 a.m. A loud argument then broke out in
the living room. Woods testified that Butler was saying, “[T]his is my neighborhood,
you know, I‟m not going to let nobody stop me from making my money.” Woods further
relayed that a man known as “T.D.” came into the living room and argued with Butler.
According to Woods, they “were arguing over the fact that T.D. and Sherman was best
friends and they are from the same neighborhood.” Butler then left the house.
      Woods testified that he remained at the computer. After Butler left, he saw Smith
exit his bedroom and go outside with a handgun. About five minutes later, Woods heard
gunshots. Smith then returned to the house and told everyone to leave. Woods left the
house and never returned.

III. Verdict and Sentencing

      At the conclusion of the trial, the jury convicted Woods as charged and found true
the firearm use enhancement allegations. The trial court sentenced Woods on count 1

                                            7
(murder) to a term of 25 years to life, with an additional term of 25 years to life for the
section 12022.53, subdivision (d) enhancement; on count 2 (possession), the three-year
upper term; and on count 3 (possession), one-third of the middle term of two years (eight
months). The trial court stayed sentence on the two other firearm enhancements.
       Woods filed a timely appeal.

                                       DISCUSSION

       On appeal, Woods requests a Pitchess review and also argues that the trial court
committed numerous instructional errors that require reversal of his conviction.
Specifically, he contends that: (1) the trial court was required to instruct the jury sua
sponte that provocation may reduce the degree of murder from first to second degree, and
that the prosecution had the burden of proving the absence of provocation beyond a
reasonable doubt; (2) the trial court was required to instruct the jury sua sponte with
CALJIC No. 8.73; and (3) the trial court was required to instruct the jury sua sponte on
third party culpability.

I. The Matter Must Be Remanded for a New In Camera Hearing on Woods’s
Pitchess Motion

       Prior to trial, Woods filed a motion under Evidence Code section 1043 and
Pitchess, supra, 11 Cal.3d 531, seeking the review of any personnel records of Officer
Ross regarding “complaints from any and all sources relating to acts of racial bias, ethnic
bias, sexual preference bias/homo-sexual bias, gender bias, coercive conduct, violation of
any constitutional rights, fabrication of charges, fabrication of evidence, fabrication of
reasonable suspicion, fabrication of probable cause, illegal search and seizure, perjury,
dishonesty, writing false reports, planting evidence, Miranda violations, coercive
statements from witnesses and/or suspects, and any other type of misconduct amounting
to dishonesty and moral turpitude….” The trial court granted the motion in part, agreeing
to inspect personnel records but only in the areas of “falsification and fabrication of
witness statements or leading witnesses to give false information.” The court then

                                              8
reviewed the records in camera and found there was no discoverable material to be
provided to the defense. On appeal, Woods has requested that we conduct an
independent review of the in camera proceedings and determine whether any
discoverable information was withheld.
       “When a trial court concludes a defendant‟s Pitchess motion shows good cause for
discovery of relevant evidence contained in a law enforcement officer‟s personnel files,
the custodian of the records is obligated to bring to the trial court all „potentially relevant‟
documents to permit the trial court to examine them for itself. [Citation.] A law
enforcement officer‟s personnel record will commonly contain many documents that
would, in the normal case, be irrelevant to a Pitchess motion, including those describing
marital status and identifying family members, employment applications, letters of
recommendation, promotion records, and health records. (See Pen. Code, § 832.8.)
Documents clearly irrelevant to a defendant‟s Pitchess request need not be presented to
the trial court for in camera review. But if the custodian has any doubt whether a
particular document is relevant, he or she should present it to the trial court. Such
practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the
locus of decisionmaking is to be the trial court, not the prosecution or the custodian of
records. The custodian should be prepared to state in chambers and for the record what
other documents (or category of documents) not presented to the court were included in
the complete personnel record, and why those were deemed irrelevant or otherwise
nonresponsive to the defendant‟s Pitchess motion. A court reporter should be present to
document the custodian‟s statements, as well as any questions the trial court may wish to
ask the custodian regarding the completeness of the record. [Citation.]” (People v. Mooc
(2001) 26 Cal.4th 1216, 1228-1229 (Mooc).)
       “„“A motion for discovery of peace officer personnel records is „addressed solely
to the sound discretion of the trial court.‟ [Citation.] A review of the lower court ruling
is subject to the abuse of discretion standard.”‟ [Citation.]” (People v. Cruz (2008) 44
Cal.4th 636, 670.) We have reviewed the sealed transcripts of the in camera proceedings,
which we find constitute an adequate record of the trial court‟s review of any documents

                                               9
provided to it. However, the record does not reflect what search the custodian made to
find relevant documents, whether the custodian provided the court with Officer Ross‟s
entire personnel file, or whether there was any document or category of documents that
were not produced for the court‟s review. Indeed, there is no indication as to which
records the custodian reviewed in advance of the hearing. The record also reveals the
trial court failed to question the custodian regarding whether he had searched for any
other and what records he searched. This leaves us unable to conduct any meaningful
review on appeal. (Mooc, supra, 26 Cal.4th at p. 1229.) Accordingly, the judgment must
be reversed and the matter remanded for the trial court to conduct a new Pitchess hearing.
(Id. at p. 1231.)

II. The Trial Court Did Not Err In Instructing The Jury

       A. Instructions on Provocation

1. Provocation Reducing Degree of Murder
       Woods first contends that the trial court failed to instruct the jury that provocation,
insufficient to warrant a finding of manslaughter, should nonetheless be considered on
the question of whether there was premeditation and deliberation. (See People v.
Valentine (1946) 28 Cal.2d 121, 132 (Valentine) [subjective provocation that is
inadequate to find voluntary manslaughter may nevertheless raise a reasonable doubt as
to presence of premeditation and permit finding of second degree murder]; People v.
Padilla (2002) 103 Cal.App.4th 675, 679 (Padilla) [same].) Woods asserts the trial court
failed to recognize evidence of the provocations which he suffered: (1) On the night of
the shooting, Butler told Decelles he was going to “put hands on [Woods]” because he
disrespected his “baby mama”; (2) Butler went looking for Woods and found him at
Smith‟s house; (3) Butler repeatedly knocked on the door and entered the house with a
golf club in his hand; and (4) once inside, Butler was “going off” and “raising hell.”
       Deliberate and premeditated first degree murder may be mitigated to second
degree murder if the jury finds that the defendant “formed the intent to kill as a direct


                                             10
response to…provocation and…acted immediately” without deliberation or
premeditation. (People v. Wickersham (1982) 32 Cal.3d 307, 329, disapproved on
another ground by People v. Barton (1995) 12 Cal.4th 186.) Provocation sufficient to
mitigate a murder to second degree murder requires only a finding that the defendant‟s
subjective mental state was such that he did not deliberate and premeditate before
deciding to kill. (Valentine, supra, 28 Cal.2d at pp. 131-135; Padilla, supra, 103
Cal.App.4th at p. 678; People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296.)
       A pinpoint instruction “relate[s] particular facts to a legal issue in the case or
„pinpoint[s]‟ the crux of a defendant‟s case, such as mistaken identification or alibi.”
(People v. Saille (1991) 54 Cal.3d 1103, 1119 (Saille).) A trial court has no sua sponte
duty to give such a pinpoint instruction where it relates not to a defense but rather to an
attempt to raise a reasonable doubt as to an element of the crime. (Id. at p. 1120.)
Subjective provocation is not a defense to first degree murder, but evidence that the
defendant was unreasonably provoked may create doubt concerning the existence of the
elements of deliberation and premeditation. Accordingly, an instruction defining the type
of provocation needed to reduce first degree to second degree is a pinpoint instruction,
which need not be given sua sponte. (People v. Rogers (2006) 39 Cal.4th 826, 878-879
(Rogers); People v. Lee (1994) 28 Cal.App.4th 1724, 1732-1734.)
       In Rogers, supra, 39 Cal.4th 826, the defendant, who had been convicted of first
degree murder, asserted the trial court erred in failing to instruct “that provocation
inadequate to reduce a killing from murder to manslaughter nonetheless may suffice to
negate premeditation and deliberation, thus reducing the crime to second degree murder.”
(Id. at pp. 877-878.) The defendant had not requested an instruction to that effect. The
Supreme Court held that such an instruction–embodied at that time in CALJIC No. 8.73–
was a pinpoint instruction because it “relates the evidence of provocation to the specific
legal issue of premeditation and deliberation.” (Rogers, supra, 39 Cal.4th at pp. 878-
879.) Accordingly, it “need not be given on the court‟s own motion.” (Id. at p. 879.) As
Woods did not request an instruction on provocation, the trial court did not err in failing
to give one.

                                              11
2. Burden of Proof on Provocation
       Woods also contends that the trial court erred in failing to identify the burden of
proof for provocation. Specifically, Woods claims reversal is required because the
instruction given, (CALJIC No. 8.30), “failed to correctly state the law because it did not
include the requirement that the prosecution prove the absence of subjective provocation
beyond a reasonable doubt.”
       The trial court instructed the jury on first and second degree murder, malice
aforethought, and deliberate and premeditated murder. The instruction defining first
degree murder, CALJIC No. 8.20, informed the jury that: “If you find that the killing
was preceded and accompanied by a clear, deliberate intent on the part of the defendant
to kill, which was the result of deliberation and premeditation, so that it must have been
formed upon pre-existing reflection and not under a sudden heat of passion or other
condition precluding the idea of deliberation, it is murder of the first degree. [¶] … [¶]
The true test is not the duration of time, but rather the extent of the reflection. A cold,
calculated judgment and decision may be arrived at in a short period of time, but a mere
unconsidered and rash impulse, even though it includes an intent to kill, is not
deliberation and premeditation as will fix an unlawful killing as murder of the first
degree.” As to second degree murder, the jury was instructed that, “Murder of the second
degree is the unlawful killing of a human being with malice aforethought when the
perpetrator intended unlawfully to kill a human being but the evidence is insufficient to
prove deliberation and premeditation.” (CALJIC No. 8.30) The jury was also instructed
under CALJIC No. 8.71 that if it had a reasonable doubt as to whether the murder was of
the first or second degree, it must give the defendant the benefit of the doubt and return a
verdict of second degree murder. Finally, the jury was also instructed that Woods was
presumed innocent and the People had the burden of proving him guilty beyond a
reasonable doubt. (CALJIC No. 2.90.)
       “Jurors are presumed able to understand and correlate instructions and are further
presumed to have followed the court‟s instructions.” (People v. Scott (1988) 200
Cal.App.3d 1090, 1095; People v. Lewis (2001) 26 Cal.4th 334, 390.) The instructions

                                              12
informed the jury that the People‟s burden to prove premeditation and deliberation
encompassed the burden to negate any reasonable doubt about imperfect provocation.
Accordingly, although CALJIC No. 8.30 did not explicitly state that the People had the
burden to prove “the absence of subjective provocation beyond a reasonable doubt,” the
point was adequately covered by the instructions which were given.

       B. CALJIC No. 8.73

       Woods next contends that the trial court had a sua sponte duty to instruct the jury
with CALJIC No. 8.73 that provocation may be considered in determining whether a
homicide is first degree or second degree murder. That instruction states, “If the
evidence establishes that there was provocation which played a part in inducing an
unlawful killing of a human being, but the provocation was not sufficient to reduce the
homicide to manslaughter, you should consider the provocation for the bearing it may
have on whether the defendant killed with or without deliberation or premeditation.”
       As discussed above, the issue was settled by the Supreme Court in Rogers, supra,
39 Cal.4th 826. Accordingly, the failure of the court to give this instruction sua sponte at
trial was not error.

       C. Instruction on Third Party Culpability

       Finally, Woods contends the trial court erred in failing to instruct the jury sua
sponte on his defense of third party culpability. According to Woods, the third party
culpability evidence generally consisted of testimony that: (1) Smith initially lied to
police about his whereabouts on the night of the murder; (2) Butler complained about
being denied access to Smith‟s house, and Smith permitted others to infringe on Butler‟s
drug sales; and (3) Woods saw Smith exit the house with a gun, and minutes later heard
gunshots. Woods asserts that, absent the instruction, the jury might have understood that
he had the burden of proving that a third party committed the crime. He argues the trial




                                             13
court had a duty, pursuant to Evidence Code section 502, to instruct the jury sua sponte as
to the burden of proof.2
       “Section 1096a of the Penal Code declares that when the statutory definition of
reasonable doubt is given (see Pen. Code, § 1096), no other instruction need be given
defining reasonable doubt. Despite this section, a defendant, upon proper request
therefor, has a right to an instruction that directs attention to evidence from a
consideration of which a reasonable doubt of his guilt could be engendered.” (People v.
Sears (1970) 2 Cal.3d 180, 190; see also Saille, supra, 54 Cal.3d at p. 1119.) An
instruction on third-party culpability, explaining the relationship between such evidence
and the prosecution‟s burden to prove guilt beyond a reasonable doubt, is a pinpoint
instruction that need be given only upon request. (People v. Gutierrez (2009) 45 Cal.4th
789, 824.)
       Here, the trial court instructed the jury according to CALJIC No. 2.90. The court
also gave CALJIC No. 2.91, which specifically informed the jury that “[t]he burden is on
the People to prove beyond a reasonable doubt that the defendant is the person who
committed the crime” and that “[i]f, after considering the circumstances of the
identification and any other evidence in this case, you have a reasonable doubt whether
defendant was the person who committed the crime,” the defendant must be found not
guilty. The jury was further instructed on the factors to consider in proving the identity
by eyewitness testimony (CALJIC No. 2.92.) These instructions sufficiently informed
the jury that the People had the burden of proving beyond a reasonable doubt that
defendant murdered Butler.




2      Evidence Code section 502 provides: “The court on all proper occasions shall
instruct the jury as to which party bears the burden of proof on each issue and as to
whether that burden requires that a party raise a reasonable doubt concerning the
existence or nonexistence of a fact or that he establish the existence or nonexistence of a
fact by the preponderance of the evidence, by clear and convincing proof, or by proof
beyond a reasonable doubt.”

                                              14
                                      DISPOSITION

       The judgment is reversed. The cause is remanded to the trial court with directions
to hold a new hearing on Woods‟s Pitchess motion in conformance with the procedures
described in this opinion. If the trial court finds there are discoverable records, they shall
be produced and the court shall conduct such further proceedings as are necessary and
appropriate. If the court again finds there are no discoverable records, or that there is
discoverable information but Woods cannot establish that he was prejudiced by the denial
of discovery, the judgment shall be reinstated as of that date.




                                                   ZELON, J.
We concur:




       PERLUSS, P. J.




       SEGAL, J.




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

                                              15
