Filed 7/30/13


                  CERTIFIED FOR PARTIAL PUBLICATION*
                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION FIVE



THE PEOPLE,
        Plaintiff and Respondent,                     A134124
                  v.
DEMETRIS COLEMAN,                                     (Contra Costa County
                                                      Super. Ct. No. 05-110237-5)
        Defendant and Appellant.

        The People charged appellant Demetrius Coleman with possession of cocaine base
for sale (Health & Saf. Code, § 11351.5). Before the preliminary hearing, appellant
moved — pursuant to Pitchess1 and other authority — for discovery of material in the
personnel file of Matthew Stonebreaker, the arresting officer for the City of Richmond
(City). Appellant also requested the City police department “run a „rap sheet‟ on Officer
Stonebreaker.” The court conducted an in camera hearing pursuant to Pitchess, reviewed
Officer Stonebreaker‟s personnel file, and ordered the City to disclose information
concerning a “complaint of false identifying information.” The court, however, denied
appellant‟s discovery motion to the extent it sought Officer Stonebreaker‟s birth date and
rap sheet.
        At the preliminary hearing, appellant moved to suppress. The magistrate denied
the motion and the trial court denied appellant‟s joint motions to set aside the information

*   Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I., II., and IV.
1   Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
                                             1
and to renew the suppression motion (Pen. Code, §§ 995, 1538.5, subd. (i)). Before trial,
appellant moved for an order pursuant to Brady v. Maryland (1963) 373 U.S. 83 (Brady)
and Penal Code section 1054.1 requiring the prosecution to, among other things, run rap
sheets on all testifying prosecution witnesses. The court granted the motion in part and
denied it in part, explaining it would order the People to comply with Brady but would
“not order rap sheets to be run on the officers.”
       A jury convicted appellant and the court sentenced him to county jail. The court
also ordered appellant to pay a $570 drug program fee pursuant to Health and Safety
Code section 11372.7, subdivision (a), and $500 in attorney fees pursuant to Penal Code
section 987.8, subdivision (b).
       On appeal, appellant contends the court erred by: (1) denying his motion to
suppress; (2) declining to order the prosecution to disclose Officer Stonebreaker‟s
“criminal history;” (3) delegating to the probation department the determination of his
ability to pay the drug program fee under Health and Safety Code section 11372.7; and
(4) ordering him to pay attorney fees pursuant to Penal Code section 987.8 without
determining his ability to pay.
       In the unpublished portion of the opinion, we conclude the court properly denied
appellant‟s motion to suppress evidence. We also conclude the court abused its
discretion by denying appellant‟s discovery motion to the extent it sought Officer
Stonebreaker‟s criminal history (if any) and that the error was prejudicial. Accordingly,
we conditionally reverse the judgment with directions to the trial court to order the
prosecutor to run Officer Stonebreaker‟s rap sheet as of the date of trial, to conduct an in
camera review in accordance with the procedures set forth in Pitchess, and to disclose
Officer Stonebreaker‟s felony convictions or misdemeanor convictions involving moral
turpitude, if any. If there are such convictions, the court must evaluate the evidence in
light of the entire record and determine whether to grant appellant a new trial. (See
People v. Hayes (1992) 3 Cal.App.4th 1238, 1246 (Hayes); see also People v. Hustead
(1999) 74 Cal.App.4th 410, 419 (Hustead).) If there are no such convictions, the court
will reinstate the original judgment. If the original judgment is reinstated, the attorney

                                              2
fee order must be reversed because there is insufficient evidence of appellant‟s present
ability to pay such fees.
       In the published portion of the opinion, we conclude the drug program fee must be
reversed if the court reinstates the judgment because the court improperly delegated to
the probation department the determination of appellant‟s ability to pay the drug program
fee and because the record does not support an implied finding of his ability to pay. On
remand, the trial court must determine appellant‟s ability to pay the drug program fee
under Health and Safety Code section 11372.7 and attorney fees pursuant to Penal Code
section 987.8.
                   FACTUAL AND PROCEDURAL BACKGROUND
       The prosecution charged appellant with possession of cocaine base. Before the
preliminary hearing, appellant moved to suppress, claiming the charge was based on
“evidence derived from an unreasonable search and seizure.”
                                Initial Motion to Suppress
       At the preliminary hearing, Officer Stonebreaker testified he and Officer Danielle
Evans were riding their police bicycles westbound on Bissell Avenue in Richmond at
5:00 p.m. on September 24, 2009. The neighborhood where the officers were riding is “a
known drug area” where people buy and sell drugs. Both officers were in uniform.
       As they rode, they saw a man they later identified as appellant walking on the
sidewalk along Bissell Avenue. The officers rode up to appellant, dismounted, and said,
“[W]hat‟s up[?]” Appellant stopped walking. Officer Stonebreaker stood about five feet
from appellant and asked his name. Appellant gave his name. Then Officer
Stonebreaker asked appellant for his date of birth and appellant complied.2 As Officer
Evans ran a warrant check, Officer Stonebreaker talked to appellant, explaining that he
and Officer Evans were part of a bicycle unit and were meeting “residents in the area.”


2  On cross-examination, Officer Stonebreaker denied asking appellant if he possessed
any drugs and denied asking appellant for permission to search him. Officer
Stonebreaker did, however, ask appellant whether he was on probation or parole and
whether he “had anything illegal on him.”
                                             3
According to Officer Stonebreaker, appellant “stopped to talk to us to see what it was.
That‟s all.” While the officers waited for the warrant check results, they did not direct or
command appellant to do anything.
       About three minutes — “or a short time” — after the encounter began, the officers
received a report that appellant “had a warrant out of Solano County.” Officer
Stonebreaker handcuffed appellant. While the officers waited for a vehicle to transport
appellant to jail, Officer Stonebreaker saw appellant “adjust[] his pants a couple of times”
and pull out a “clear plastic bagg[ie] containing an off-white chunky substance.”
Appellant tossed the baggie behind him; it landed about two or three feet away on the
other side of a fence. Officer Stonebreaker retrieved the baggie while Officer Evans put
appellant in the patrol car. Officer Evans did not see appellant discard the baggie. When
Officer Stonebreaker retrieved the baggie, appellant “became very angry” and “very
verbally abusive, and saying whatever we found was not his.” The baggie contained 6.29
grams of cocaine base. Officer Stonebreaker also found $193 in appellant‟s pockets.
       Carlos English, a homeless man who collects cans in a shopping cart and recycles
them, testified he had come into contact with Officer Stonebreaker about 10 times and
that he is a “nightmare.” According to English, Officer Stonebreaker digs through his
shopping cart full of cans, “turn[s] it over[,]” and harasses him “for nothing.” Officer
Stonebreaker did not recall meeting English, overturning his shopping cart, or
investigating him.
       After hearing lengthy argument from counsel, the court denied the motion to
suppress, concluding the encounter was consensual.
                               Renewed Motion to Suppress
       Appellant filed joint motions to set aside the information and to renew the
suppression motion (Pen. Code, §§ 995, 1538.5, subd. (i)). The trial court denied the
motions. It noted the officers “did not issue any commands; they did not block
[appellant‟s] path; they did not display any weapons. The evidence did not reflect a
physical touching of [appellant‟s] person or a tone of voice indicating that it was
mandatory for [appellant] to answer Officer Stonebreaker‟s questions. [¶] The encounter

                                             4
occurred in daylight at a seemingly busy location. The public nature of the encounter is
arguably increased because the officers were on bicycles — no patrol cars to shield from
public view whatever was going on.” Finally, the court concluded the fact that the
officers performed a warrant check, by itself, did not transform the encounter into a
detention.
                       Appellant’s Discovery Motions and Requests
       Several months before the preliminary hearing, appellant filed a motion for
discovery of material in Officer Stonebreaker‟s personnel file “indicating . . . internal and
civilian complaints, investigations, or reports in which allegations of corruption, illegal
arrests and/or searches, the fabrication of charges and/or evidence, acts of harassment or
malicious conduct against citizens, dishonesty and improper tactics . . . or false arrest.”
The motion also requested the Richmond Police Department “run a „rap sheet‟ on Officer
Stonebreaker.” Appellant brought the motion pursuant to Pitchess, Brady, and Evidence
Code sections 1043, 1045, and 1046. Defense counsel‟s supporting declaration averred
appellant did not possess narcotics on the day of the incident and did not “toss[] a bag of
cocaine from his person.” Counsel stated the City, the Richmond Police Department
and/or the Contra Costa County District Attorney‟s Office possessed the materials and
that there was good cause to produce them because Officer Stonebreaker had a “tendency
to fabricate incident reports and initiate detentions without reasonable suspicion.”
       The City opposed the motion, arguing: (1) appellant had not demonstrated the
confidential information regarding Officer Stonebreaker‟s prior conduct was material to
the issues at the preliminary hearing; and (2) it “d[id] not have actual possession of
criminal history records” and was not required to search for them.
       Following a hearing, the court indicated it would examine Officer Stonebreaker‟s
personnel file for “dishonesty in terms of falsifying information.” The court declined,
however, to “order a CNI rap sheet run on the officer” and declined “to give the date of
birth of the officer” to defense counsel because it determined the rap sheet and birth date
were “something that‟s reserved for trial.” The court then conducted an in camera


                                              5
hearing and ordered the City to disclose information concerning a “complaint of false
identifying information.”
       Appellant moved for reconsideration, arguing he was entitled to Pitchess
discovery before the preliminary hearing under Galindo v. Superior Court (2010) 50
Cal.4th 1. Appellant suggested the court order the City to disclose Officer
Stonebreaker‟s birth date to the prosecution so the prosecution could run the rap sheet.
The City opposed the motion and appellant‟s request to order the City to disclose the
birth date to the prosecution. The court denied the reconsideration motion, concluding
the “original Pitchess motion did not have a sufficient basis of materiality or evidence for
the court to consider . . . releasing the date of birth or rap sheet.” The court continued, “I
don‟t believe there‟s any legal authority to provide a rap sheet . . . particularly without
any showing whatsoever that a rap sheet would be relevant to this, as well as the date of
birth is not relevant to the Pitchess motion.”
       In a pretrial motion, appellant moved for an order — pursuant to Brady and Penal
Code section 1054.1 — requiring the prosecution to, among other things, run rap sheets
on all prosecution witnesses. The court granted the motion “except that I will not order
rap sheets to be run on the officers. However, I will require the People to comply with
Brady. Somewhat of a distinction.” Defense counsel objected and argued: “I think that
the prosecution should be required to run rap sheets on their police witnesses. There‟s no
reason to exempt them. And it‟s my understanding that the prosecution does run rap
sheets on all of their other witnesses as well as defense witnesses and sometimes even
jurors.” The court noted the objection and overruled it.
                                            Trial3
       At 5:00 p.m. on September 24, 2009, Officers Stonebreaker and Evans were on
bicycle patrol on Bissell Avenue — an area known for narcotics activity — when they
saw appellant walking alone. The officers rode up to appellant, and said, “ „What‟s up‟
to him.” Officer Stonebreaker told appellant he was part of the bicycle patrol program

3  We summarize the evidence at trial as relevant to appellant‟s claim regarding the
discoverability of Officer Stonebreaker‟s “criminal history.”
                                                 6
and that he and Officer Evans were “contacting people in the . . . area and introducing
ourselves and letting them know what the bicycle program was about.” Officer
Stonebreaker asked for appellant‟s name and date of birth. At that point, the officers
were off of their bicycles. Officer Stonebreaker also asked appellant whether he was on
probation or parole, and whether he had anything illegal.4 Appellant complied. The
conversation was “cordial. It was good.”
       As the officers spoke to appellant, they learned he had an outstanding warrant.
Officer Stonebreaker put handcuffs on appellant and “double locked” them to make sure
the handcuffs were “completely locked.” Officer Stonebreaker searched appellant‟s
pockets, found $193 in small bills, and called for a transport unit. Appellant stood,
handcuffed, with a wrought iron fence behind him. Officer Stonebreaker was standing
between three and five feet from appellant, on appellant‟s left side. Officer Evans stood
on appellant‟s other side, facing Officer Stonebreaker. The officers and appellant formed
a triangular position.
       While appellant stood there, both officers noticed appellant was adjusting his pants
by “wiggling left to right to pull his pants up.” While he was doing this, appellant
laughed with the officers in a way that seemed “like he was trying to distract” them.
Then appellant “took out something . . . that was in plastic” with his fingertips and “threw
it between the bars of the wrought iron fence.” Officer Stonebreaker saw the object land
about three feet away, on the other side of the fence. Officer Evans did not see appellant
throw the object; although she sometimes faced appellant as the officers waited for the
transport unit to arrive, she was looking at the surrounding area to “make sure that the
scene was safe.”
       Officer Stonebreaker told Officer Evans that appellant had “dropped” something,
pointed out the object to Officer Evans, and went to retrieve it. At that point, the patrol
car arrived and Officer Evans placed appellant in the car. Officer Stonebreaker retrieved
the object: a clear plastic baggie containing two smaller baggies, one that held 18

4  Officer Stonebreaker testified he asked appellant for permission to pat search but did
not pat search appellant until after he arrested him.
                                              7
individually packaged pieces and one that held small to larger chunks — or about 6.29
grams — of cocaine base.
         Appellant testified he was in Richmond on the day of the incident to have his
friend repair his car. Appellant had approximately $200 and was going to use it to pay
his friend for the repairs.5 When appellant arrived at his friend‟s house, his friend
“wasn‟t ready” so appellant walked to a nearby store to buy a bottle of water. As he
walked to the store, he noticed Officers Stonebreaker and Evans had “someone else
detained.”
         On his way out of the store, the officers rode up to appellant and asked him what
he was doing in the neighborhood. Officer Stonebreaker asked appellant for his name
and whether he “ha[d] any guns on [him].” The officers were not “cordial.” They did
not explain the bicycle patrol program. Appellant said Officer Stonebreaker could search
him for weapons; Officer Stonebreaker then asked appellant a few more questions and
started patting him down by “digging” in his pockets. When appellant said, “Why [are]
you digging in my pockets,” Officer Stonebreaker told appellant to place his hands
behind his back and handcuffed him. He eventually told appellant about the warrant.
         The handcuffs were extremely tight and prevented appellant from adjusting his
pants, which “were falling down.”6 Appellant asked Officer Evans to help him with his
pants and she complied. Appellant did not adjust his pants while he was handcuffed. He
did not possess cocaine base or throw any cocaine base on the day of the incident.
Appellant had been convicted of false imprisonment and possession of a firearm by a
felon.




5  Appellant‟s friend testified he agreed to repair the car for $200 and that appellant
came to his house on the day of the incident. Appellant‟s friend had a theft conviction.
6   Appellant did not know whether Officer Stonebreaker used one pair of handcuffs or
two. A defense investigator and former police officer handcuffed appellant before the
jury using a pair of “regulation size” handcuffs. Officer Evans testified that Officer
Stonebreaker used two sets of handcuffs because of appellant‟s size.
                                              8
                                  Verdict and Sentencing
       The jury convicted appellant of possession of cocaine base for sale (Health & Saf.
Code, § 11351.5) and the court sentenced him to three years in jail. Among other things,
the court ordered appellant to pay a $570 drug program fee (Health & Saf. Code,
§ 11372.7, subd. (a)) and $500 in attorney fees (Pen. Code, § 987.8, subd. (b)). At the
sentencing hearing, the court stated: “[Appellant is] to pay a court security fee of $40, a
court conviction assessment of $30, a probation report fee of $176, a criminal justice
administration fee of . . . $564. [¶] A lab analysis fee . . . of $190 and a drug program fee
of $570. [¶] All of these other fines and fees, except for the $600 restitution fee, are
based on his ability to pay. So probation will do an analysis of his ability to pay and it
will be set that way. [¶] Attorney‟s fees will be assessed in the amount of $500.”
Defense counsel did not object to the imposition of these fees.
       The probation report does not recommend the imposition of the drug program fee
or attorney fees, nor does it address appellant‟s ability to pay such fees. The report,
however, describes appellant‟s education and employment history. Appellant — who
was 39 years old at the sentencing hearing — earned his General Education Diploma
(G.E.D.) and took several classes toward earning an administrative justice certificate. He
dropped out of the program after losing his driver license. Appellant suffers from
numerous health problems and has been diagnosed with schizophrenia. The probation
report describes appellant as “employable” and notes he has “electrical skills. He was
employed by the Chevron Refinery in Richmond performing fire watch duties from 1993
to 1997. . . . He was employed by Veraflow in Richmond, which manufactures parts for
the Chevron Refinery. Additionally he possesses skills in painting and landscaping.”
Before appellant was incarcerated, he was the primary caregiver for his ailing sister.
According to the probation report, appellant “reported that he does not have a checking or
saving account. He advised that he has no assets.”




                                              9
                                       DISCUSSION
I. The Court Properly Denied Appellant’s Motion to Suppress
       “A criminal defendant is permitted to challenge the reasonableness of a search or
seizure by making a motion to suppress at the preliminary hearing. [Citation.] If the
defendant is unsuccessful at the preliminary hearing, he or she may raise the search and
seizure matter before the superior court under the standards governing a [Penal Code]
section 995 motion. [Citation.]
       “In a proceeding under [Penal Code] section 995, the superior court‟s role is
similar to that of an appellate court reviewing the sufficiency of the evidence to sustain a
judgment. [Citation.] The superior court merely reviews the evidence; it does not
substitute its judgment on the weight of the evidence nor does it resolve factual conflicts.
[Citation.] On appeal from a [Penal Code] section 995 review of the denial of a
defendant‟s motion to suppress, we review the determination of the magistrate at the
preliminary hearing. [Citations.] We must draw all presumptions in favor of the
magistrate‟s factual determinations, and we must uphold the magistrate‟s express or
implied findings if they are supported by substantial evidence. [Citations.]
       “[To determine] whether the challenged search or seizure was reasonable under
the Fourth Amendment, we review the magistrate‟s factual determinations under the
substantial evidence standard. [Citation.] We judge the legality of the search by
„measur[ing] the facts, as found by the trier, against the constitutional standard of
reasonableness.‟ [Citation.] Thus, in determining whether the search or seizure was
reasonable on the facts found by the magistrate, we exercise our independent judgment.
[Citation.]” (People v. McDonald (2006) 137 Cal.App.4th 521, 528-529.)
       Police contacts with individuals fall into three broad categories: (1) consensual
encounters; (2) detentions; and (3) formal arrests. (In re Manuel G. (1997) 16 Cal.4th
805, 821 (Manuel G.); Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 (Wilson).)
The Fourth Amendment does not protect every encounter between the police and a


   See footnote, ante, page 1.
                                             10
citizen. (In re Christopher B. (1990) 219 Cal.App.3d 455, 460.) As the United States
Supreme Court has explained, “law enforcement officers do not violate the Fourth
Amendment by merely approaching an individual on the street or in another public place,
by asking him if he is willing to answer some questions, by putting questions to him if the
person is willing to listen, or by offering in evidence in a criminal prosecution his
voluntary answers to such questions.” (Florida v. Royer (1983) 460 U.S. 491, 497;
Wilson, supra, 34 Cal.3d at p. 789; accord, Florida v. Bostick (1991) 501 U.S. 429, 434
(Bostick) [a detention does not occur when a police officer approaches a person on the
street and “asks a few questions”].)
       “[N]o reasonable suspicion is required on the part of the officer” before initiating a
consensual encounter. (Manuel G., supra, 16 Cal.4th at p. 821; accord, People v. Hughes
(2002) 27 Cal.4th 287, 327.) To determine whether an encounter is consensual, a court
considers “all the circumstances surrounding the encounter to determine whether the
police conduct would have communicated to a reasonable person that the person was not
free to decline the officers‟ requests or otherwise terminate the encounter.” (Bostick,
supra, 501 U.S. at p. 439; accord, Michigan v. Chesternut (1988) 486 U.S. 567, 573.) Put
another way, an encounter is consensual if, after considering the totality of the
circumstances, “a reasonable person would feel free to disregard the police and go about
his or her business.” (Manuel G., at p. 821.) “What constitutes a restraint on liberty such
that a person would conclude that he is not free to leave varies with the particular police
conduct at issue and the setting in which the conduct occurs. [Citation.]” (People v. Ross
(1990) 217 Cal.App.3d 879, 884, disapproved on another point as stated in People v.
Walker (1991) 54 Cal.3d 1013, 1022.)
       In contrast, a detention requires an “articulable suspicion that the person has
committed or is about to commit a crime.” (Manuel G., supra, 16 Cal.4th at p. 821.) A
detention occurs when the police, by physical force or show of authority, have in some
way restrained a person‟s liberty. (Bostick, supra, 501 U.S. at p. 434; People v.
Cartwright (1999) 72 Cal.App.4th 1362, 1367.) “Examples of circumstances that might
indicate a seizure, even where the person did not attempt to leave, would be the

                                             11
threatening presence of several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer‟s request might be compelled.” (United States
v. Mendenhall (1980) 446 U.S. 544, 554; People v. Terrell (1999) 69 Cal.App.4th 1246,
1254.) Other factors include the time and place of the encounter, whether the defendant
was informed he was free to leave, whether the police indicated the defendant was
suspected of a crime, whether the police retained the defendant‟s documents, and whether
the police exhibited other threatening behavior. (See, e.g., Wilson, supra, 34 Cal.3d at p.
790; People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227.)
       Appellant contends he was detained because the officers “ask[ed] him a series of
intrusive questions” about “whether he was on probation or parole and had anything
illegal on his person.” According to appellant, a reasonable person in this situation would
not feel free to leave. We disagree. We conclude appellant was not detained. The
officers rode their bicycles up to appellant in a public place and stopped several feet away
from him. They did not command him to stop. The officers did not block his path or
display any weapons. They did not touch appellant. As Officer Stonebreaker explained,
appellant “stopped to talk to us to see what [the bicycle patrol program] was. That‟s all.”
(United States v. Drayton (2002) 536 U.S. 194, 197-200 [defendant not detained when an
officer wearing a concealed weapon boarded a bus, showed his badge to the defendant,
questioned him, arrested his companion, and then asked the defendant to consent to a
patdown search].)
       Appellant relies on Wilson, supra, 34 Cal.3d 777. In Wilson, an undercover
narcotics officer — who had been monitoring incoming flights from Florida to discover
transportation of drugs into California — saw the defendant and another man arrive at the
Los Angeles International Airport on a flight from Miami. (Id. at p. 780.) The officer
followed the defendant and the other man through the terminal, and then approached the
defendant as he stood next to his car parked at the curb. (Id. at pp. 780-781.) The officer
asked the defendant if he “ „might have a minute of his time‟ ” and the defendant agreed.
(Id. at p. 781.) Then the officer told the defendant he was conducting a narcotics

                                            12
investigation, “ „and that we had received information that he would be arriving today
from Florida carrying a lot of drugs.‟ ” (Ibid., italics & fn. omitted.) The California
Supreme Court concluded the defendant was detained when the officer accused him of
transporting narcotics because a reasonable person, when confronted by a narcotics
officer and accused of importing illegal drugs, would not feel free to leave the encounter.
(Id. at pp. 790-791.)
       Wilson is distinguishable. Here, Officer Stonebreaker did not accuse appellant of
committing a crime. He simply asked appellant general questions about his name and
date of birth. That Officer Stonebreaker asked appellant whether he was on probation or
parole and whether he possessed anything “illegal” does not make this situation similar to
the one in Wilson, where the police officer followed the defendant and told him he was
under suspicion of transporting narcotics.
       Nor did the fact that the officers performed a warrant check transform the
encounter into a detention. (People v. Bouser (1994) 26 Cal.App.4th 1280, 1284
(Bouser).) Bouser is instructive. In that case, the police officer — who was in his patrol
car — approached the defendant after observing him in an alleyway known for drug
trafficking. The officer parked his vehicle, walked up to the defendant, who was walking
away, and asked to speak with the defendant. The defendant stopped and allowed the
officer to speak with him. The officer asked the defendant general information questions,
such as his name, date of birth, and prior arrest history. (Id. at p. 1282.) The officer then
used this information to fill out “a field interview card” and radioed to check for
outstanding warrants. (Ibid.) He did not tell the defendant he was checking for warrants,
but the defendant was close enough to hear the officer on his radio. The records check
revealed an outstanding traffic warrant, which was relayed to the officer 10 minutes after
his initial contact with the defendant. (Id. at pp. 1282-1283.)
       The Bouser court concluded that under the totality of the circumstances, the check
for outstanding warrants did not strip this citizen/police encounter of its consensual
character. (Bouser, supra, 26 Cal.App.4th at p. 1287.) In doing so, the court
acknowledged, that when considered in light of the officer‟s questioning, “it is reasonable

                                             13
to presume the check alerted Bouser he was somehow being investigated” and that he
“reasonably may have felt the subject of general suspicion.” (Ibid.) Nevertheless, the
court found it significant that “neither the questioning nor the warrant check related to
specific and identifiable criminal activity. Moreover, [the officer] did not order Bouser to
do anything or turn over anything to him to hold while the brief check was completed.
Nor did [the officer] draw his weapon, make any threatening gestures, or utilize his car‟s
lights or siren.” (Ibid.)
       The same is true here. The warrant check did not convert the encounter into a
detention. Here, Officer Stonebreaker asked questions about appellant‟s identity and
criminal background while Officer Evans performed a warrant check that took three
minutes. The questioning did not relate to “specific and identifiable criminal activity”
and neither officer drew a weapon, made a threatening gesture, or commanded appellant
to do anything. (Bouser, supra, 26 Cal.App.4th at p. 1287.) We conclude the trial court
properly denied appellant‟s motion to suppress.
II. The Court Erred in Denying Discovery of Officer Stonebreaker’s Felony and
    Misdemeanor Convictions Involving Moral Turpitude, if Any
       Appellant contends he “had a right to discovery of Officer Stonebreaker‟s criminal
history” under Pitchess, Brady and Penal Code section 1054.1.7 In response, the People


   See footnote, ante, page 1.
7   As stated above, the court conducted an in camera hearing pursuant to Pitchess and
reviewed Officer Stonebreaker‟s personnel file and a record of the police department‟s
investigation of complaints and investigations “for dishonesty in terms of falsifying
information.” At appellant‟s request, we have reviewed the sealed transcript of the in
camera hearing. The custodian of records brought Officer Stonebreaker‟s personnel file
and the “Internal Affairs Complaints Investigations” to the in camera hearing. The court
placed the custodian under oath, described the contents of the personnel file and the
Internal Affairs Complaints Investigations, and reviewed them. We conclude the record
is adequate to determine whether Officer Stonebreaker‟s files contained matters related to
acts of moral turpitude. (People v. Mooc (2001) 26 Cal.4th 1216, 1229.) We also
conclude the court followed the procedure outlined by the California Supreme Court for
Pitchess motions and did not abuse its discretion by ordering the disclosure of one
complainant. (People v. Prince (2007) 40 Cal.4th 1179, 1285-1286.) As we explain,
however, the court abused its discretion by declining to order the prosecution to search
                                             14
contend: (1) Officer Stonebreaker‟s rap sheet was not discoverable; (2) the City
represented neither it nor the Richmond Police Department possessed “criminal history
relating to Officer Stonebreaker”; (3) appellant‟s final request for Officer Stonebreaker‟s
rap sheet did not comply with “Pitchess or Evidence Code sections 1043 and 1045”; and
(4) there was no Brady violation in part because the evidence was not favorable and
material.
       As a matter of due process, a defendant is entitled to discovery of all material
exculpatory evidence, including impeachment evidence. (Strickler v. Greene (1999) 527
U.S. 263, 280-281; Brady, supra, 373 U.S. 83; People v. Superior Court (Barrett) (2000)
80 Cal.App.4th 1305, 1314.) Such exculpatory evidence includes any misdemeanor
misconduct involving moral turpitude disclosed in a witness‟s rap sheet, as well as
information relating to whether the witness has pending criminal charges and whether he
is on probation. (People v. Santos (1994) 30 Cal.App.4th 169, 178-179 (Santos); Hayes,
supra, 3 Cal.App.4th at p. 1244.) Additionally, Penal Code section 1054.1 provides “The
prosecuting attorney shall disclose to the defendant or his or her attorney all of the
following materials and information, if it is in the possession of the prosecuting attorney
or if the prosecuting attorney knows it to be in the possession of the investigating
agencies: [¶] . . . [¶] (d) The existence of a felony conviction of any material witness
whose credibility is likely to be critical to the outcome of the trial.”
       The People correctly note rap sheets themselves are not discoverable. (People v.
Roberts (1992) 2 Cal.4th 271, 308 (Roberts); Hill v. Superior Court (1974) 10 Cal.3d
812, 821.) While the prosecution need not disclose Officer Stonebreaker‟s actual rap
sheet, it must disclose the record of a felony conviction and any misdemeanor conviction
involving moral turpitude. (Santos, supra, 30 Cal.App.4th at pp. 178-179 [applying
People v. Wheeler (1992) 4 Cal.4th 284, 295-296, and concluding misdemeanor
misconduct involving moral turpitude must be disclosed “when such information is
requested by the defendant and is in the prosecutor‟s possession”]; Roberts, at p. 308

for and produce records of Officer Stonebreaker‟s criminal history, if any, and that the
error was prejudicial.
                                              15
[court erred as a matter of state procedural law by failing to order disclosure of all felony
convictions to the defense].) The People concede as much when they state “appellant did
have the right to information relating to [Officer Stonebreaker‟s] convictions of any
felon[ies] or misdemeanors involving moral turpitude” if the information was
“ „reasonably accessible‟ to the prosecutor.”
       Here, “[n]ot only does the prosecutor have reasonable access to rap sheets, he is
the assigned doorkeeper. Since the prosecutor has reasonable access to rap sheets, and he
has „possession‟ under [In re Littlefield (1993) 5 Cal.4th 122], . . . a prosecutor shall on a
standard discovery request inquire of „the existence of a felony conviction of any material
witness whose credibility is likely to be critical to the outcome of the trial.‟ ” (People v.
Little (1997) 59 Cal.App.4th 426, 432-433, quoting Pen. Code, § 1054.1, subd. (d)].) In
addition, “the birth date of a police officer is covered by Penal Code section 832.8 and
can be discovered only by means of a Pitchess motion.” (Fletcher v. Superior Court
(2002) 100 Cal.App.4th 386, 401-402.)
       As in Roberts, we conclude appellant “showed good cause to discover” Officer
Stonebreaker‟s applicable felony and misdemeanor convictions, if any. (Roberts, supra,
2 Cal.4th at p. 308.) Defense counsel‟s declaration in support of the original discovery
motion averred appellant did not possess narcotics and did not toss a baggie containing
cocaine base on the day of the incident. The declaration also stated Officer Stonebreaker
had a tendency to initiate detentions without reasonable suspicion and to fabricate
incident reports. Finally, defense counsel stated the prosecution possessed Officer
Stonebreaker‟s criminal history. We also conclude, particularly because the People do
not contend otherwise, that the disclosure of this information “[would] not impair a
legitimate governmental interest.” (Ibid.) Accordingly, the court abused its discretion in
failing to allow discovery of Officer Stonebreaker‟s felony convictions, and misdemeanor
convictions involving moral turpitude, if any. (Roberts, at p. 308; Santos, supra, 30
Cal.App.4th at p. 179; Hayes, supra, 3 Cal.App.4th at pp. 1245-1246.)
       Hustead is instructive. There, the defendant charged with evading arrest and
resisting arrest moved for discovery, claiming “the police report contained material

                                              16
misstatements and that the officer used excessive force against [him].” (Hustead, supra,
74 Cal.App.4th at p. 415.) After the prosecutor moved to dismiss the resisting arrest
charge, the trial court denied [the defendant‟s] discovery request. (Id. at pp. 415-416.)
On appeal, the defendant argued the Pitchess “motion should have been granted with
respect to whether the officer has a history of misstating or fabricating facts in his police
reports.” (Hustead, at p. 416.) The Hustead court agreed, and concluded the defendant
made a showing of prejudice. As the court explained, “We are unable to conclude that
there is a reasonable probability that the discovery sought in this case would have led to
admissible evidence helpful to [the defendant] in his defense. [Citation.] There may not
have been any complaints against [the officer] for the type of conduct [the defendant]
sought. In that case, [the defendant] would not have been prejudiced because access to
the officer‟s file would not have led to any admissible evidence at trial. However, we
must consider the possibility that such evidence may exist.” (Id. at p. 418.)
       The Hustead court remanded the case to the trial court to conduct an in camera
hearing on the discovery motion, noting that if there was no discoverable information, the
judgment would be reinstated and affirmed. If there was discoverable information, the
defendant would be given “an opportunity to determine if the information would have led
to any relevant, admissible evidence that he could have presented at trial. [Citation.] If
[the defendant] is able to demonstrate that he was prejudiced by the denial of the
discovery, the trial court should order a new trial. If [the defendant] is unable to show
any prejudice, then the conviction is ordered reinstated, and the judgment is ordered
affirmed.” (Hustead, supra, 74 Cal.App.4th at p. 418.])
       As in Hustead, we cannot conclude the error was harmless on the record before us.
Officer Stonebreaker‟s testimony was critical to the conviction, particularly because he
was the only one who saw appellant throw the baggie. Officer Evans did not see
appellant toss the baggie and appellant denied adjusting his pants and possessing cocaine
base on the day of the incident. He claimed he could not reach his pants when he was
handcuffed. Additionally, “we cannot determine whether there is any information


                                             17
responsive to appellant‟s request or what its impact on [Officer Stonebreaker‟s]
credibility would be.” (Hayes, supra, 3 Cal.App.4th at p. 1246, fn. omitted.)
       The People seem to contend any error was not prejudicial because “the record
does not show a reasonable probability of a more favorable result for appellant.”
According to the People, “[t]his conclusion, of course, flows from the lack of evidence
concerning the existence and nature of any convictions or other criminal history.” We
are not persuaded by this circular logic. There is a lack of evidence concerning the
existence of Officer Stonebreaker‟s criminal history because the court did not order the
prosecution to run Officer Stonebreaker‟s rap sheet. This is not a situation where the
prosecutor stated it ran Officer Stonebreaker‟s rap sheet and found no discoverable
information.
       The People contend that if the court erred, the case may be remanded to the trial
court to determine whether the prosecution had responsive information and, if so,
whether the information was material. We accept the People‟s suggestion and reverse the
judgment and remand to the trial court to determine whether, as of the date of trial, there
was any information responsive to appellant‟s request; that the prosecution run Officer
Stonebreaker‟s rap sheet as of the date of trial, to conduct an in camera hearing in
accordance with Pitchess and produce records, if any, of his felony convictions and
misdemeanor convictions involving moral turpitude. If there are no such records, the
court should reinstate the judgment and consider appellant‟s ability to pay certain fees
(see section III., below).
       If there are records, “the trial court must evaluate the materiality of the evidence in
light of the whole record and determine whether to grant a new trial.” (Hayes, supra, 3
Cal.App.4th at p. 1246, fn. omitted; see also Hustead, supra, 74 Cal.App.4th at pp. 418-
419; People v. Coyer (1983) 142 Cal.App.3d 839, 845.)




                                             18
III. If the Original Judgment Is Reinstated, the Health and Safety Code Section 11372.7
     Drug Program Fee Must Be Reversed
       As stated above, the court imposed a drug program fee of $570 pursuant to Health
and Safety Code section 11372.7, subdivision (a). Appellant contends the court erred by
delegating the determination of his ability to pay this fee to the probation department. 8
       Subject to certain exceptions, Health and Safety Code section 11372.7,
subdivision (a) requires defendants convicted of certain drug offenses to “pay a drug
program fee in an amount not to exceed [$150] for each separate offense.” (People v.
Corrales (2013) 213 Cal.App.4th 696, 701 (Corrales).) The Health and Safety Code
section 11372.7 drug program fee “is mandatory unless the defendant is unable to pay.”
(People v. Clark (1992) 7 Cal.App.4th 1041, 1050 (Clark).)
       Pursuant to Health and Safety Code section 11372.7, subdivision (b), “[t]he court
shall determine whether or not the person who is convicted of a violation of this chapter
has the ability to pay a drug program fee. If the court determines that the person has the
ability to pay, the court may set the amount to be paid and order the person to pay that
sum to the county in a manner that the court believes is reasonable and compatible with
the person‟s financial ability. In its determination of whether a person has the ability to
pay, the court shall take into account the amount of any fine imposed upon that person
and any amount that person has been ordered to pay in restitution. If the court determines




8   We ordered the parties to submit supplemental briefing on whether appellant forfeited
this challenge by failing to object when the trial court imposed the fee. (See People v.
McCullough (2013) 56 Cal.4th 589 (McCullough).) Having reviewed the supplemental
briefing, we conclude McCullough does not bar appellant‟s claim. In McCullough, our
high court held the defendant‟s failure to object to imposition of a jail booking fee under
Government Code section 29550.2 forfeited a sufficiency of the evidence of ability to pay
claim on appeal because “a court‟s imposition of a booking fee is confined to factual
determinations.” (Id. at p. 597.) Here, and in contrast to McCullough, appellant does not
contend there is insufficient evidence of his ability to pay the drug program fee. He
contends his sentence is unauthorized because the court improperly delegated the
determination of his ability to pay to the probation department. This presents a question
of law we may review in the absence of an objection in the trial court. (Id. at p. 594.)
                                             19
that the person does not have the ability to pay a drug program fee, the person shall not
be required to pay a drug program fee.”
       The trial court is not required to make an express finding of ability to pay the drug
program fee. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1516; People v.
Staley (1992) 10 Cal.App.4th 782, 785.) Several appellate courts have presumed the trial
court determined the defendant had the ability to pay the drug program fee when the
record “does not suggest otherwise.” (Clark, supra, 7 Cal.App.4th at p. 1050 [“[s]ince
the record does not suggest otherwise, we presume the court found [the defendant] had
the ability to pay”]; Corrales, supra, 213 Cal.App.4th at p. 702 [“[w]e presume the trial
court determined [the] defendant was able to pay” the drug program fee].)
       Here, we cannot presume the court found appellant had the ability to pay the drug
program fee because the court explicitly stated the probation department would “do an
analysis of [appellant‟s] ability to pay, and it will be set that way.” By delegating the
ability to pay finding to the probation department, the court failed to comply with Health
and Safety Code section 11372.7, subdivision (b), which requires the court — not the
probation department — to “determine whether or not the person who is convicted of a
violation of this chapter has the ability to pay a drug program fee.” We cannot, as the
People urge, presume “the trial court will comply with Health and Safety Code section
11372.[7]” at some point in the future.
       Neither does the record support an implied finding of ability to pay. (Corrales,
supra, 213 Cal.App.4th at p. 702.) In Corrales, the trial court imposed the drug program
fee but “did not orally impose any penalties or the surcharge on the . . . drug program
fee.” (Id. at p. 701.) The Second District Court of Appeal presumed the trial court had
concluded the defendant had an ability to pay $150, but explained, “the total amount
payable” — with penalties or the surcharge — was “not $150, but $540. The probation
report contains no evidence of defendant‟s assets. The probation report states [the]
defendant is an unemployed ex-convict. Thus, there is no substantial evidence [the]
defendant has the ability to pay the drug program fee after it has been enhanced by the
penalties and surcharge.” (Id. at p. 702.) The Corrales court reversed the drug program

                                             20
fee and remanded for the trial court to determine the defendant‟s ability to pay “in light of
all of [the] defendant‟s financial circumstances.” (Ibid.)
       Here, as in Corrales, there is insufficient evidence to support an implied finding
appellant has the ability to pay the drug program fee. The probation report does not
recommend appellant pay the drug program fee, nor does it analyze his ability to pay
such a fee. As described above, the probation report states appellant has no assets, is
unemployed, and suffers from numerous health problems, including schizophrenia.
Although appellant has a G.E.D. and possesses electrical, painting, and landscaping
skills, he has no employment prospects and has physical limitations.
       We conclude the court erred by delegating to the probation department the
analysis of appellant‟s ability to pay the drug program fee. We also conclude the record
does not support an implied finding of appellant‟s ability to pay the drug program fee. If
the court reinstates the judgment in accordance with our opinion, it must “conduct a
hearing concerning [appellant‟s] ability to pay the drug program fee in light of his total
financial obligations.” (Corrales, supra, 213 Cal.App.4th at p. 702.)
IV. If the Original Judgment Is Reinstated, the Penal Code Section 987.8 Attorney Fees
    Must Be Reversed
       Next, appellant contends the trial court erred by ordering him to pay attorney fees
of $500 under Penal Code section 987.89 without considering his ability to pay. We
address this argument notwithstanding appellant‟s failure to object at the sentencing
hearing, in part because the People do not argue forfeiture. (See People v. Verduzco
(2012) 210 Cal.App.4th 1406, 1421 (Verduzco); People v. Viray (2005) 134 Cal.App.4th
1186, 1214 [“unless the defendant has secured a new, independent attorney when such an
order is made, [her or] she is effectively unrepresented at that time, and cannot be
vicariously charged with her erstwhile counsel‟s failure to object to an order reimbursing
his own fees”].)



   See footnote, ante, page 1.
9   Unless noted, all further undesignated statutory references are to the Penal Code.
                                             21
       “In California, the statutory procedure for determining a criminal defendant‟s
ability to reimburse the county for the services of court-appointed counsel is set forth in
section 987.8.”10 (People v. Phillips (1994) 25 Cal.App.4th 62, 76, fn. omitted
(Phillips).) Under section 987.8, subdivision (e), the determination that a defendant has
the present ability to pay is a prerequisite to entry of an order requiring payment of
attorney fees. The finding of ability to pay may be express or implied, as long as it is
supported by substantial evidence. (People v. Lopez (2005) 129 Cal.App.4th at p. 1508,
1537; Phillips, at p. 71.)
       “ „Ability to pay‟ means the overall capability” of the defendant to reimburse all or
a portion of the defense costs. (§ 987.8, subd. (g)(2).) Ability to pay requires
consideration of the defendant‟s financial position at the time of the hearing, his
“reasonably discernible” financial position over the subsequent six months, including the


10  Section 987.8, subdivision (b) provides in relevant part: “In any case in which a
defendant is provided legal assistance, . . . upon conclusion of the criminal proceedings in
the trial court, . . . the court may, after notice and a hearing, make a determination of the
present ability of the defendant to pay all or a portion of the cost thereof. The court may,
in its discretion, hold one such additional hearing within six months of the conclusion of
the criminal proceedings. The court may, in its discretion, order the defendant to appear
before a county officer designated by the court to make an inquiry into the ability of the
defendant to pay all or a portion of the legal assistance provided.”
    Section 987.8, subdivision (d) provides: “If the defendant, after having been ordered
to appear before a county officer, has been given proper notice and fails to appear before
a county officer within 20 working days, the county officer shall recommend to the court
that the full cost of the legal assistance shall be ordered to be paid by the defendant. The
notice to the defendant shall contain all of the following: [¶] (1) A statement of the cost
of the legal assistance provided to the defendant as determined by the court. [¶] (2) The
defendant‟s procedural rights under this section. [¶] (3) The time limit within which the
defendant‟s response is required. [¶] (4) A warning that if the defendant fails to appear
before the designated officer, the officer will recommend that the court order the
defendant to pay the full cost of the legal assistance provided to him or her.”
    Section 987.8, subdivision (e) provides in relevant part: “If the court determines that
the defendant has the present ability to pay all or a part of the cost, the court shall set the
amount to be reimbursed and order the defendant to pay the sum to the county in the
manner in which the court believes reasonable and compatible with the defendant‟s
financial ability. . . .”
                                              22
likelihood of employment during that time, and “[a]ny other factor or factors which may
bear upon the defendant‟s financial capability to reimburse the county.” (§ 987.8,
subds.(g)(2)(A)-(D).)
       Here, the court did not make an express finding of appellant‟s ability to pay the
attorney fees. Instead, it ordered appellant to report to a county office for consideration
of his ability to pay.11 The court, however, did not order appellant to pay $500 in
attorney fees only if the Probation Collection Unit determined he was able to pay, nor did
the court indicate the attorney fees order was conditioned upon such a finding. Because
the court entered an unconditional attorney fees order, we must consider whether
substantial evidence supports an implied finding appellant has the ability to pay.
       The answer is no. Substantial evidence does not support an implied finding that
appellant has the ability to pay. Although the probation report indicated appellant had
been employed in the past and had some employable skills, it also reported he was not
employed at the time of the offense, had not worked in several years, and had no assets.
“The specific language of section 987.8 expressly requires a finding of present ability to
pay for defense costs.” (People v. Nilsen (1988) 199 Cal.App.3d 344, 350.) That
appellant may have been employed in the past does not constitute substantial evidence of
his present ability to pay attorney fees. Because the court may not consider a period

11  The court‟s written order concerning attorney fees is a preprinted form. It states: “[A]
county officer will interview you to determine if you are able to pay all or part of the
services of the attorney appointed by the Court to handle your case. If the Probation
Collection Unit finds that you are able to pay a certain amount, and you do not agree, you
have the right to a hearing in this Court to decide what amount, if any, you must pay. At
the hearing you will have the right to: (i) be heard in person, (ii) present witnesses and
other documentary evidence, (iii) confront and cross-examine adverse witnesses, and
(iv) have the evidence against you disclosed to you. You are also entitled to have a copy
of any written recommendation of the county officer and a written statement of any
findings of the court. [¶] If you do not go to the Probation Collection Unit, as ordered,
you waive (give up) your right to a hearing, and the Court will enter a judgment against
you, ordering you to pay for the services of your attorney.” Appellant signed the order,
indicating that he “acknowledge[d] receipt of the above order and under[stood] that if [he
did] not report as ordered, the court [would] enter a judgment against [him] for the total
costs of legal services of [his] attorney.”
                                             23
beyond six months after the hearing in determining a defendant‟s present ability to pay
(§ 987.8, subd. (g)(2)(B)), appellant‟s three-year jail term strongly suggests an inability to
pay.
       We conclude there was insufficient evidence before the trial court of appellant‟s
present ability to pay attorney fees.12 If the original judgment is reinstated in accordance
with our opinion, the attorney fee order must be reversed. On remand, the court must
make a determination under section 987.8 of appellant‟s ability to pay. (Prescott, supra,
213 Cal.App.4th at p. 1476 [“Since the trial court failed to consider [the defendant‟s]
ability to pay as required by section 987.8, we remand the matter for a new hearing.”];
Verduzco, supra, 210 Cal.App.4th at p. 1421 [no substantial evidence of ability to pay
section 987.8 attorney fees where trial court did not conduct a hearing].)
                                       DISPOSITION
       The judgment is conditionally reversed with directions to the trial court to:
(1) order the prosecutor to run Officer Stonebreaker‟s rap sheet as of the date of trial;
(2) conduct an in camera review in accordance with the procedures set forth in Pitchess;
and (3) disclose Officer Stonebreaker‟s felony convictions or misdemeanor convictions
involving moral turpitude, if any. If there are such convictions, the court must evaluate
the evidence in light of the entire record and determine whether to grant appellant a new
trial. (See Hayes, supra, 3 Cal.App.4th at p. 1246; Hustead, supra, 74 Cal.App.4th at p.
419.) If there are no such convictions, the court will reinstate the original judgment.
       If the original judgment is reinstated, the Health and Safety Code section 11372.7
drug program fee is reversed. On remand, the trial court is to determine appellant‟s
ability to pay the drug program fee together with the other fines, fees, and assessment in
light of all of appellant‟s financial circumstances. If appellant has the ability to pay, the
drug program fee is to be reinstated. If the original judgment is reinstated, the Penal

12  We reject appellant‟s suggestion that he was presumptively unable to pay attorney
fees pursuant to section 987.8 subdivision (g)(2)(B). (People v. Prescott (2013) 213
Cal.App.4th 1473, 1476 (Prescott) [statutory presumption that prisoner cannot reimburse
costs of defense did not apply to defendant sentenced to jail under the Realignment Act
(§ 1170, subd. (h)(5)(B))].)
                                              24
Code section 987.8 attorney fee order is also reversed. On remand, the court must
determine appellant‟s ability to pay attorney fees in accordance with Penal Code section
987.8. If appellant has the ability to pay the attorney fees, the order imposing attorney
fees will be reinstated.
       In all other respects, the judgment is affirmed.




                                                  Jones, P. J.




Simons, J.




Needham, J.




                                             25
Superior Court of Contra Costa County, No. 05-110237-5, Thomas M. Maddock, Judge.

Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Gerald A. Engler, Assistant Attorney General, Eric D. Share and Ronald E. Niver,
Deputy Attorneys General, for Plaintiff and Respondent.




                                          26
