Filed 6/27/16 P. v. Martin CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B267865

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA080450)
         v.

ARMANDO MARTIN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Cynthia Ulfig, Judge. Conditionally reversed and remanded.


         Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle, Deputy Attorney
General, for Plaintiff and Respondent.


                  ___________________________________________________
       Defendant Armando Martin appeals from a judgment after he pleaded no contest
to charges in an information of sale, offer to sell or transportation of methamphetamine in
violation of Health and Safety Code section 11379, subdivision (a) (count 1) and
possession of a firearm by a felon in violation of Penal Code1 section 29800,
subdivision (a)(1) (count 3). Defendant also admitted that he had a prior “strike”
conviction within the meaning of sections 667, subdivisions (b) through (j), and 1170.12.
       The trial court sentenced defendant to the upper term of four years as to the base
term in count 1, which was doubled to eight years for the strike, plus a concurrent term of
two years for count 3, which was doubled due to the strike. The court awarded defendant
624 days of presentence credits.
       Prior to his plea, the trial court denied defendant’s motion for the disclosure of
personnel records of two police officers, which were requested pursuant to Pitchess v.
Superior Court (1974) 11 Cal.3d 531 (Pitchess). The trial court subsequently denied
defendant’s motion to suppress evidence under section 1538.5.
       In this appeal, defendant contends that the trial court erroneously denied his
Pitchess motion. We conditionally reverse the judgment with directions for further
proceedings.
Prosecution Evidence
       The following facts are taken from defendant’s motion to suppress evidence. On
April 9, 2014, at around 9:00 p.m., Los Angeles Police Department Officers Naul Lopez
and Robert Sewell were driving in a marked patrol car. They observed defendant driving
a Mercedes with a middle brake light that did not work. The officers ran the license plate
and learned that the vehicle’s registration had expired in October 2013. The officers then
made a traffic stop of the Mercedes.
       Officer Lopez went to the driver’s side of the vehicle, while Officer Sewell went
to the passenger side. Defendant was on the driver’s side and Javier Serna was on the
passenger side. Officer Lopez informed defendant of the traffic violations and asked for

1      All further statutory references are to the Penal Code unless otherwise indicated.

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defendant’s license. Defendant responded that he did not have a driver’s license with
him. Serna informed Officer Sewell that he also did not have any form of identification
with him.
       After obtaining defendant’s and Serna’s names and information, the officers
conducted a “wants and warrants” check on the two men. The “wants and warrants”
check revealed that Serna was on probation with a search term. Officer Lopez testified
that he learned of the probation status within five minutes of the traffic stop. The officers
searched the passenger compartment of the vehicle and discovered a black sock on the
floor behind the driver’s seat. The sock contained a clear plastic bag of
methamphetamine. After a K-9 unit responded to the location, officers discovered a
shotgun in the trunk of the Mercedes.
Defense Evidence
       Defense counsel argued at the hearing on the motion to suppress evidence that the
police did not learn of Serna’s status until well after the officers searched the vehicle. In
support of the claim, defendant offered a police log from the night in question. The log
contains entries describing Serna’s probation status at 11:06 p.m. and another at 12:14
a.m.
The Pitchess Motion and the Motion to Suppress Evidence
       On February 26, 2015, defendant filed a Pitchess discovery motion. Defendant
sought disclosure of “[a]ll complaints from any and all sources relating to acts of
aggressive behavior, the violation of constitutional rights, harassment of private
individuals, fabrication of charges, fabrication of evidence, fabrication of reasonable
suspicion and/or probable cause; illegal search or seizure, false arrest, perjury,
dishonesty, writing of false police reports, and any other evidence of misconduct
amounting to moral turpitude . . . .”
       In support of the discovery request, defense counsel declared that the defense
would be that, contrary to the officers’ claims, defendant provided his driver’s license,
proof of insurance and registration when he was asked. Serna did not have any
identification. The officers asked if defendant and Serna were on parole or probation.

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Both denied that they were. After doing the wants and warrants check, the officers told
defendant that he was on probation. Defendant responded that he was not, and had been
off probation for about five months. Ignoring defendant’s statements, the officers got the
men out of vehicle and handcuffed them. Although defendant repeatedly told the officers
he was not on probation, they told him they were going to search the vehicle. The
officers searched the vehicle. While the search was being conducted, officers took
defendant’s and Serna’s fingerprints. Sometime later, they learned that Serna was on
probation.
       The trial court conducted a hearing on the Pitchess motion on March 20, 2015.
The trial court initially found that defendant had met the threshold for an in camera
hearing. However, after further argument from the prosecutor, the trial court denied the
motion. In denying the discovery request, the trial court noted that the defense statement
that officers took defendant’s and Serna’s fingerprints during the search did not make
sense nor was it realistic that prints could be taken in field. The defense statement that
Serna’s probation status was not known until later also did not make sense because the
“wants and warrants” check had shown he was on probation.
       On September 25, 2015, defendant filed a motion to suppress evidence. On
October 16, 2015, the trial court held a hearing on the motion to suppress. In denying the
motion, the trial court found credible Officer Lopez’s testimony that he knew Serna was
on probation prior to searching the vehicle. Defense counsel indicated that he might file
a second Pitchess motion. After the trial court stated that it would not “relitigate” the
Pitchess issue, defendant pled no contest to counts 1 and 3.
                                      DISCUSSION
       Defendant claims the trial court erred by denying his Pitchess motion, which
sought information about Officers Lopez and Sewell. Defendant argues that the case
should be remanded to the trial court for an in camera review consistent with his
discovery request.




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I. Absence of Certificate of Probable Cause
       As a preliminary matter, the parties dispute whether the Pitchess issue is
cognizable on appeal because defendant did not obtain a certificate of probable cause.
Appellate courts are limited in the review of issues after a guilty plea and the absence of a
certificate of probable cause. (§ 1237.52; People v. Johnson (2009) 47 Cal.4th 668, 676-
678.) However, the certificate of probable cause requirement does not apply to appeals
from judgments based solely on grounds: (1) occurring after entry of the plea which do
not challenge the validity of the plea, or (2) involving a search and seizure, if the validity
was contested pursuant to section 1538.5. (Johnson, at pp. 676-678; People v. Cuevas
(2008) 44 Cal.4th 374, 379.)
       The ruling on a Pitchess motion is generally not reviewable after a guilty plea.
(People v. Hunter (2002) 100 Cal.App.4th 37, 42-43.) However, section 1538.5 provides
an exception to the general rule when “the Pitchess motion [is] intertwined with litigating
the legality of [a] search, the trial court’s denial of that motion is cognizable on appeal.”
(People v. Collins (2004) 115 Cal.App.4th 137, 151.) In this case, defendant is correct
that the issue is cognizable on appeal because his Pitchess motion was intertwined with
the legality of the search and seizure, which was the basis of his motion to suppress
evidence.
II. Discovery Under Pitchess
       In Pitchess, our Supreme Court ruled that a criminal defendant may compel the
discovery of police officer files with a proper showing that information in them is
material to the defense. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019
(Warrick).) The procedures to obtain the records are set forth in the Evidence and Penal


2      Section 1237.5 provides: “No appeal shall be taken by the defendant from a
judgment of conviction upon a plea of guilty or nolo contendere or a revocation of
probation following an admission of violation, except where both of the following are
met: [¶] (a) The defendant has filed with the trial court a written statement, executed
under oath or penalty of perjury showing reasonable, constitutional, jurisdictional, or
other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed
and filed a certificate of probable cause for such appeal with the clerk of the court.”

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Codes. (People v. Mooc (2001) 26 Cal.4th 1216, 1219-1220.) The personnel records of
peace officers are confidential and subject to disclosure only through the discovery
procedures set forth in Evidence Code sections 1043 and 1046. (§ 832.7.) The peace
officer personnel file includes any file maintained under that individual’s name which
relates to discipline, complaints, or investigations of complaints in which the officer
participated. (§ 832.8.)
       To obtain discovery of a peace officer personnel file, the defendant must file a
noticed motion supported by a good cause affidavit setting forth (1) the materiality of the
request to the pending litigation and (2) a reasonable belief that the agency has the
records or information. (Evid. Code, § 1043; Warrick, supra, 35 Cal.4th at p. 1019;
People v. Collins, supra, 115 Cal.App.4th at p. 150.) “This two-part showing of good
cause is a ‘relatively low threshold for discovery.’ [Citation.]” (Warrick, at p. 1019.)
       “[A] showing of good cause requires a defendant seeking Pitchess discovery to
establish not only a logical link between the defense proposed and the pending charge,
but also to articulate how the discovery being sought would support such a defense or
how it would impeach the officer’s version of events.” (Warrick, supra, 35 Cal.4th at
p. 1021.) Good cause may be established by “a specific factual scenario of officer
misconduct that is plausible when read in light of the pertinent documents.” (Id. at
p. 1025.) “[A] plausible scenario of officer misconduct is one that might or could have
occurred. Such a scenario is plausible because it presents an assertion of specific police
misconduct that is both internally consistent and supports the defense proposed to the
charges.” (Id. at p. 1026.)
       If good cause is shown, the trial court conducts an in camera examination of the
records to determine whether there is any relevance to the issues presented by the
litigation. (Evid. Code, § 1045; Warrick, supra, 35 Cal.4th at p. 1019.) These
procedures balance the confidentiality of peace officers against the defendant’s need for
disclosure to pursue his or her defense. (City of Santa Cruz v. Municipal Court (1989) 49
Cal.3d 74, 85-86.)



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       The trial court has broad discretion in ruling on whether an in camera hearing is
required. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086.) We review
the trial court’s ruling for an abuse of discretion. (People v.v. Cruz (2008) 44 Cal.4th
636, 670; Pitchess, supra, 11 Cal.3d at p. 535.)
       In this case, defendant contended that the two officers searched the vehicle prior to
obtaining any information that Serna was on probation. Defendant claimed that the
officers did not learn of Serna’s probation until sometime after the vehicle was searched.
Defense counsel’s declaration indicated that defendant told officers that he was not on
parole or probation. Defendant also disputed that he failed to produce his driver’s license
when the officers made the initial stop. Thus, defendant maintained that the officers
fabricated a portion of evidence surrounding the search and seizure of the vehicle. As the
trial court initially determined, this was sufficient to establish the threshold for the in
camera hearing.
       However, the trial court determined that the Pitchess motion should be denied
because defense counsel’s declaration indicated that defendant and Serna were
fingerprinted in the field during the search. The trial court determined that these
assertions of the facts “made no sense.” In Warrick, supra, 35 Cal.4th 1011, our
Supreme Court concluded that good cause for Pitchess discovery only requires that the
defendant present a factual scenario of police misconduct that “might or could have
occurred.” (Warrick, at p. 1026.) Furthermore, “a credibility or persuasiveness standard
at the Pitchess discovery stage” is inconsistent with statutory and decisional law requiring
only a defense counsel affidavit on information and belief. (Warrick, at p. 1026.)
Warrick further explained that the factual scenario “may consist of a denial of the facts
asserted in the police report.” (Id. at pp. 1024-1025.) The trial court’s conclusions about
the plausibility or credibility of defendant’s claims are not consistent with Warrick.
Evidence that Officers Lopez and Sewell had fabricated evidence in other cases would
have been pertinent to their credibility in conducting the search which led to the arrest.
Under the circumstances, the trial court should have granted the in camera hearing.



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       Although we conclude that the trial court should have granted the in camera
hearing, an outright reversal is not the appropriate remedy. “[T]he proper remedy when a
trial court has erroneously rejected a showing of good cause for Pitchess discovery and
has not reviewed the requested records in camera is not outright reversal, but a
conditional reversal with directions to review the requested documents in chambers on
remand.” (People v. Gaines (2009) 46 Cal.4th 172, 180.) On remand if the court
determines there is no pertinent information in the requested documents, the judgment
must be reinstated. (Id. at pp. 181-183.)
       In this case, defendant claims, if the new Pitchess hearing results in discoverable
information, the remedy should include an opportunity to present evidence and argument
that he was prejudiced in presenting his motion to suppress. The issue of the officers’
alleged misconduct in searching the vehicle is pertinent to the motion to suppress. Thus,
defendant is correct that the motion to suppress should be reconsidered in light of any
discoverable evidence which is disclosed during the new Pitchess proceeding.
                                     DISPOSITION
       The judgment is conditionally reversed and the matter is remanded for further
proceedings. The trial court is directed to conduct a new Pitchess hearing to view the
officers’ personnel files and to permit discovery of relevant information. If relevant
information is disclosed, defendant shall have the opportunity to present evidence and
argument that the failure to disclose the information was prejudicial to defendant’s
motion to suppress, in which case the trial court shall conduct a new hearing on the
motion to suppress. If no relevant information is in the confidential files, the judgment is
to be reinstated.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                            BOREN, P.J.
We concur:


       ASHMANN-GERST, J.                    CHAVEZ, J.

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