Filed 12/16/13 P. v. Freeman CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C070176

                   Plaintiff and Respondent,                                     (Super. Ct. No. 09F06376)

         v.

JAMES EARL FREEMAN,

                   Defendant and Appellant.




         A jury convicted defendant James Earl Freeman of possession of cocaine base
(Health & Saf. Code, § 11350, subd. (a)). The trial court sustained a strike and four prior
prison term allegations and sentenced him to eight years in state prison.

         On appeal, defendant asks us to review the trial court’s in camera determination
that certain police personnel files did not contain any discoverable materials. Finding the



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trial court’s in camera review of defendant’s discovery request was impermissibly
perfunctory, we conditionally reverse the judgment for the purpose of the trial court’s
conducting a new discovery hearing in camera.

                              FACTUAL BACKGROUND
The Crime

       On August 22, 2009, Sacramento County Deputy Sheriff Jason Abbott and
Sacramento Police Officer Steven Fontana were conducting regional transit fare
enforcement investigations. At around 2:20 p.m., they saw defendant and Michael Scott1
exit the south line train at the 47th Street station. Deputy Abbott contacted defendant and
asked him for a train ticket, which defendant did not have. Defendant did not have
identification, but gave Abbott his name and other identifying information.

       Deputy Abbott directed defendant to sit on a bench by his patrol car while he
conducted a records check. After the records check, Abbott searched defendant and
found a baggie with a piece of rock cocaine in his right front pocket.
Defense

       Defendant testified that he had asked his uncle for some male enhancement pills
the night before. His uncle went inside his trailer and returned a few minutes later with a
“balled up” sandwich bag, which defendant put into his right pocket without checking.

       On August 22, 2009, defendant met Scott at the Meadowview light rail station and
they took the train. Neither defendant nor Scott bought a ticket because the machine was
not working.




1 Officer Fontana contacted Scott, who did not have a ticket. He ran a records check that
confirmed the verbal identification Scott gave to him. Fontana issued a citation to Scott
for fare evasion and released him.


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       When Deputy Abbott found defendant did not have a ticket, defendant tried to
explain that the ticket machine was not working. Defendant gave his name and birth date
to Abbott, who had him sit on a bench while the deputy went to his patrol car. Abbott
returned from the patrol car and searched defendant, finding the sandwich bag he got
from his uncle the night before. Defendant told Abbott about the male enhancement
drug; Abbott searched the bag again and found another object—the cocaine. Abbott
showed defendant what he found in the bag, which defendant had not seen before.

       The parties stipulated that on August 22, 2009, one fare machine at the
Meadowview station was broken and another machine was operational.
The Pitchess2 Hearing

       Before trial, defendant brought two discovery motions seeking the personnel
records of Deputy Abbott and Officer Fontana. As to both motions, the trial court (Hon.
Peter Mering) found good cause was shown to review the officers’ personnel files for
evidence of racial bias or racial profiling. The trial court then conducted separate in
camera hearings with representatives of both agencies.

       The following is the entirety of the hearing on Officer Fontana. The court asks the
questions, which are answered by Patrick Kohles, the custodian of records for the
Sacramento Police Department.3

       “Q. All right. Now, have you reviewed the records of the officer in question,
which is Officer Fontana, as to the area I outlined or indicated was discoverable?

       “A. Yes, Your Honor, I have.




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

3 After taking the witness stand, Kohles was placed under oath by the court clerk. (See
People v. Mooc (2001) 26 Cal.4th 1216, 1229-1230, fn. 4 (Mooc).)


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         “Q. All right. And are there any qualifying reports that need to be—that either are
strictly within the Court’s guidelines or, at least, close enough to require review by the
Court?”

         “A. No, Your Honor, there is not.

         “Q. There are none?

         “A. No, Officer Fontana has no formal investigations that have been conducted by
my office.

         “Q. Well, I think that’s all I need to hear, right?

         “[CITY ATTORNEY]: Sounds like it.

         “[THE COURT]: I don’t get enough of these to get good at them, but two in the
last two weeks, so I’m beginning to recognize case names. Okay. So that’s progress, I
guess.

         “Okay. Well, thank you very much. You may step down.

         “[KOHLES]: Thank you, Your Honor.”

         The following is the in camera hearing on Deputy Abbott with the custodian of
records, Jillian Kingston,4 and Captain Scott Jones of the Sacramento Sheriff’s
Department:

         “Q. All right. Ms. Kingston, have you reviewed your records as to Deputy
Abbott?

         “A. Yes, I have.




4 Kingston was placed under oath by the court clerk.



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       “Q. And in the areas the Court outlined or—we call it an area—but the idea of or
the concern of racial bias, displayed by the officer, or racial profiling in his conduct or
performance of his duties, have you reviewed the records for those questions?

       “A. Yes, I have.

       “Q. And do you have any reports or disclosures that you believe qualify and
should be presented to the Court?

       “A. No, I do not.

       “Q. You do not?

       “A. Do not.

       “Q. You don’t have some borderline case that you should disclose and the Court
should then decide if it qualifies?

       “A. No, Your Honor.

       “[THE COURT to CAPTAIN JONES]: Anything you want to offer from this
witness?

       “[CAPTAIN JONES]: No, Your Honor.

       “[THE COURT]: All right.

       “[CAPTAIN JONES]: Thank you.

       “[THE COURT]: It wouldn’t seem necessary. Okay. Thank you very much,
ma’am.

       “[KINGSTON]: Thank you.

       “[THE COURT]: You may step down.”




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       The trial court ended the in camera hearings and informed defendant it had
received, through testimony, records of both officers and found nothing to disclose as
there were no records relating to racial bias or racial profiling.

                                       DISCUSSION

       Defendant asks us to review the trial court’s ruling that there were no discoverable
materials in the officers’ personnel records.

       To compel discovery of confidential materials in peace officer personnel files (a
right originating in Pitchess, supra, 11 Cal.3d 531 and later encoded in various statutes),
a defendant must file an affidavit that establishes good cause in the form of a reasonable
belief that the type of records requested are material to his defense and in the possession
of the employing agency; only a relatively low threshold is necessary to compel
discovery. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) Upon a finding of
good cause, the trial court must then review the records in camera and disclose “only that
information falling within the statutorily defined standards of relevance.” (Warrick, at
p. 1019.)

       Fundamental to the procedure under the statutory scheme that codifies Pitchess is
“the intervention of a neutral trial judge” to examine the records and determine what
documents, if any, should be disclosed. (Mooc, supra, 26 Cal.4th at p. 1227 .)
“Documents clearly irrelevant to a defendant’s Pitchess request need not be presented to
the trial court for in camera review”; however, “[t]he 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.”
(Mooc, at p. 1229.)




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       “Absent this information, the [trial] court cannot adequately assess the
completeness of the custodian’s review of the personnel files, nor can it establish the
legitimacy of the custodian’s decision to withhold documents contained therein. Such a
procedure is necessary to satisfy the Supreme Court’s pronouncement that ‘the locus of
decisionmaking’ at a Pitchess hearing ‘is to be the trial court, not the prosecution or the
custodian of records.’ ” (People v. Guevara (2007) 148 Cal.App.4th 62, 69, quoting
Mooc, supra, 26 Cal.4th at p. 1229 [sworn statement of custodian that records did not
contain potentially discoverable materials was insufficient to satisfy trial court’s
obligation to review records; since custodian’s sealed list of documents actually reviewed
was not available for appellate review, must conditionally reverse for new hearing].)

       The trial court failed to follow this procedure for proper Pitchess review. The two
custodians did not present any documents for review, and the court did not question them
about what documents or categories of documents were contained in the locations they
reviewed. Rather, the trial court impermissibly deferred to the custodians’ judgment
about whether disclosure was appropriate, and did not make a record of the documents
that were subject to their determinations. This leaves us unable to conduct any
meaningful review on appeal.

       Accordingly, we must conditionally reverse the judgment and remand for the trial
court to conduct a new Pitchess hearing, at which it must personally review the personnel
records and confirm the conclusions of the custodians of records. The court must also
make a record of what it reviews, obtain a list or log of the records from the agency and
place that document in the court record, or place sealed copies of the agency records in
the court record. (Mooc, supra, 26 Cal.4th at p. 1228.) If, the trial court finds there was
discoverable evidence, it must then determine whether defendant was prejudiced from the
denial of discovery. (People v. Hustead (1999) 74 Cal.App.4th 410, 423.)




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                                       DISPOSITION

       The judgment is conditionally reversed. The cause is remanded to the trial court
with directions to conduct a new Pitchess hearing in which it shall either conduct its own
review of the relevant records or obtain a list of the documents that the custodians
reviewed. If the trial court finds there is in fact discoverable evidence, it shall then
determine whether defendant was prejudiced from the denial of discovery. If the court
confirms the lack of discoverable evidence or finds that defendant was not prejudiced
from the denial of discovery, the judgment shall be reinstated as of the date of its ruling
to that effect. Otherwise, the trial court shall conduct further proceedings as are
warranted.




                                                          BUTZ                  , J.



We concur:



      BLEASE                 , Acting P. J.



      MURRAY                 , J.




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