Filed 10/11/13 P. v. Sutton CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F065080
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF138447A)
                   v.

DEON SHONTEL SUTTON,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Sidney P.
Chapin, Judge.
         Jan B. Norman, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

         *Before     Gomes, Acting P.J., Detjen, J., and Franson, J.
       Defendant Deon Shontel Sutton was convicted of driving under the influence and
driving without a valid license. His only contention in this appeal is that this court should
review the record of the in camera proceedings that were held pursuant to his Pitchess
motion1 and determine whether any discoverable material was withheld. We have done
so and conclude that the trial court did not abuse its discretion. We will affirm the
judgment.
                     FACTUAL AND PROCEDURAL HISTORIES
       A car driven by Sutton was pulled over by police for not making a full stop at a
stop sign. A passenger dumped some clear liquid out the window as the officers
approached the car. The officers found a partially full bottle of rum in the car’s center
console. Asked for his license, Sutton produced only a California identification card. He
smelled of alcohol, his eyes were bloodshot, and his speech was slurred. An officer
administered three field sobriety tests to Sutton, the results of each of which were
consistent with impairment by alcohol. A breath test administered at the scene and a test
of a blood sample taken about an hour afterward at a hospital both indicated a blood
alcohol level above the legal limit, 0.08 percent.
       The district attorney filed an information alleging three counts: (1) driving under
the influence with a prior felony conviction for driving under the influence during the
previous 10 years (Veh. Code, §§ 23152, subd. (a), 23550.5); (2) driving with a blood
alcohol level of 0.08 percent or more with a prior felony conviction for driving under the
influence during the previous 10 years (Veh. Code, §§ 23152, subd. (b), 23550.5); and
(3) driving without a valid license (Veh. Code, § 12500, subd. (a)). The information also

       1Pitchess v. Superior Court (1974) 11 Cal.3d 531. Motions, like the one at issue
here, to compel discovery of evidence in a law enforcement officer’s personnel file, are
now based on Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043
through 1047, but they are still called Pitchess motions after the case in which our
Supreme Court first authorized them. (See People v. Mooc (2001) 26 Cal.4th 1216, 1219
(Mooc).)



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alleged that Sutton had a prior strike conviction (an attempted robbery) under the Three
Strikes Law. (Pen. Code, §§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e).) Finally, the
information alleged that Sutton had served two prior prison terms within the meaning of
Penal Code section 667.5, subdivision (b).
       Sutton filed his Pitchess motion before trial. It asked for material relevant to the
arresting officer’s credibility, honesty, and prior acts of moral turpitude. Sutton
contended that the officer had fabricated evidence regarding his arrest and that records of
similar misconduct from the officer’s files could be used to impeach him. Among other
things, Sutton claimed he did make a full stop at the stop sign; he argued that if his
version were believed, his suppression motion would be granted. The court held an in
camera hearing and ruled that there was no discoverable evidence.
       After a jury trial, Sutton was found guilty of counts 1 and 3. The jury failed to
reach a verdict on count 2, and the court dismissed that count on the People’s motion.
The enhancement allegations were found true after a court trial.
                                       DISCUSSION
       In deciding a Pitchess motion, a court must first determine whether the motion
shows good cause for production of an officer’s confidential personnel records. If it does,
the court must obtain potentially relevant personnel records from their custodian and
review them for relevance at a hearing in camera. The court is then to order disclosure to
the moving party of any information relevant to the pending litigation. (Mooc, supra, 26
Cal.4th at p. 1226.)
       Sutton requests that we examine the record of the in camera hearing to determine
whether the court failed to order disclosure of any relevant information or otherwise
failed to follow the Pitchess procedure. The People join in the request. We review the
trial court’s ruling for abuse of discretion. (Mooc, supra, 26 Cal.4th at p. 1228.)
       At the in camera hearing, a custodian of records for the Bakersfield Police
Department testified that he had gathered records responsive to the motion and brought


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them to court. The court stated that it had reviewed the records and found nothing
discoverable.
       The materials produced by the custodian of records included a citizen complaint
and the arresting officer’s personnel file. We have reviewed these materials and found no
material that would have been helpful to the defense in supporting its contentions that the
officer fabricated evidence and was dishonest in describing the facts surrounding Sutton’s
arrest. The court did not abuse its discretion.
                                      DISPOSITION
       The judgment is affirmed.




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