Filed 1/7/14 P. v. Green 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE


THE PEOPLE,                                                         B240421

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. TA118150)
         v.

JOHN HENRY GREEN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, John T.
Doyle, Judge. Reversed with directions.
         Robert Bryzman, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for
Plaintiff and Respondent.
                                            ——————————
       Defendant John Green appeals his conviction of one count of unlawful possession
of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1)).1 He contends the trial
court erred in excluding testimony of a Pitchess2 witness that one of the deputies
conducting a search of his home had been accused of planting evidence on an arrestee,
and requests that we conduct an independent review of the trial court’s in camera Pitchess
hearing to determine whether proper procedures were followed. We find merit in
defendant’s contentions that the trial court abused its discretion by failing to order the
disclosure of certain Pitchess discovery and the trial court also erred in failing to make an
adequate record of the Pitchess hearing to permit meaningful review, and we will
conditionally reverse the judgment and remand for disclosure of specified materials and a
new Pitchess hearing.
             FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       Defendant was charged in an information with one count of possession of cocaine
base for sale (Health & Saf. Code, § 11351.5), and one count of unlawful possession of a
firearm by a felon (former Pen. Code, § 12021, subd. (a)(1)). The information also
alleged prior felony convictions under Penal Code section 667.5, subdivision (b) and
Health and Safety Code section 11370.2, subdivision (a).
                Prosecution Case
       On April 28, 2011, at approximately 2:00 p.m., Deputy Sheriff Regan Fitzgerald
was conducting surveillance of a four-plex residence at 409 North Culver Avenue in
Compton with his partner Deputy Saavedra. The deputies were preparing to serve a
search warrant at the location. Deputy Fitzgerald observed the red Toyota Corolla
described in the search warrant turn into the driveway. About five minutes later, the
Toyota left with defendant driving and two female passengers. Deputy Fitzgerald had
observed defendant driving the Toyota on two other occasions during the past two weeks,


       1   All statutory references are to the Penal Code unless otherwise indicated.
       2   Pitchess v. Superior Court (1974) 11 Cal.3d 531.

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and Deputy Fitzgerald had seen defendant enter and exit the residence twice before on
other occasions.
       Deputy Fitzgerald, who was in charge of the investigation, followed the Toyota
and notified two other deputies in the area, Deputies Edward Retamoza and Tony
Franklin, to stop the Toyota. Deputy Fitzgerald observed these deputies stop defendant’s
car and place him in their patrol vehicle; no other deputies were present. Deputy
Fitzgerald advised the other deputies to remain with the Toyota until further notice, and
returned to the police station. Deputy Fitzgerald “suited up” at the station, which
consisted of putting on helmets and other equipment in preparation for entering
defendant’s house. This took about 15 minutes; the station is about a mile from where
defendant was detained. Sergeant Shawn Jones was one of the sheriffs suiting up with
Deputy Fitzgerald.
       Deputy Angel Grandes had provided Deputy Fitzgerald with a set of keys to the
409 Culver residence obtained from the Toyota by Deputy Tony Franklin. Deputy
Fitzgerald went to the residence and made sure it was clear of occupants, and then sent
for Deputies Retamoza and Franklin to bring defendant and the Toyota to the residence.
The Toyota had been detained for about 30 minutes about six blocks away. Deputy
Franklin did not search the car, and did not notice anything unusual about the speakers on
either side of the car.
       The deputies conducted a canine search of the Toyota at 409 Culver. The police
dog alerted at both the driver’s side and passenger side doors. Deputies discovered the
interior speaker casing was slightly open on the driver’s side, and found baggies
containing a white powder later determined to be cocaine base. The dog also alerted at
the passenger side view mirror, and deputies recovered 22 baggies containing a white
powder later determined to be cocaine base from the right side speaker area.
       Sergeant Jones took a video to document the condition of the home before the
search began. Deputy Fitzgerald and other deputies then entered the residence to execute
the search warrant. In the kitchen deputies found a small plastic shopping bag containing


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empty, unused plastic baggies. In a northeast bedroom was a bed and a dresser with some
clothing in it. Detective Lopez summoned Deputy Fitzgerald to the room, where Deputy
Lopez had found a plastic baggie containing a large chunk of suspected rock cocaine in
the closet on an upper shelf. A .45-caliber firearm was in the top drawer of the dresser.
The weapon had a clip with bullets in the clip. Deputies also recovered four notebooks
from the drawer containing names and numerical values next to them which in Deputy
Fitzgerald’s opinion were “pay-and-owes” sheets showing record keeping of narcotics
sales. Deputies found two electronic scales in the top drawer of the dresser.
       From the dresser, deputies also recovered a California Driver’s License, a personal
identification card, a photocopy of a social security card, a pink slip for the Toyota, and
other miscellaneous paperwork, all of which was in defendant’s name addressed to him at
409 Culver. On top of the dresser was a man’s leather wallet. The wallet contained
several identification cards in defendant’s name, and approximately $1,500 in cash.
       During the search, Sergeant Jones, who was supervising the search, was “in and
out” of the house during the search of the house and the car.
       In Deputy Fitzgerald’s opinion, the narcotics were possessed for the purposes of
sale based on the quantity recovered, which was more than would be possessed for
personal use; the quantities recovered from the Toyota were packaged for sale and were
in equal amounts; the scales found at the house are used to measure cocaine; it is common
to see a firearm kept at a location where drugs are being stored; the currency recovered
was likely the proceeds of sale of narcotics; and the pay-and-owe sheets were used to
keep track of narcotics sales. In addition, the baggies in the kitchen were ready to be
filled and used.
              Defense Case
       Defendant testified he was homeless in April 2011. He would stay at the Crystal
Park Casino or a friend’s house. Defendant gambled at the Casino every day. His father
owned the house at 409 Culver. During the early part of April 2011, four other people
were staying at the house, but defendant’s father had asked them to move. At the time of


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defendant’s arrest, his father had just left for Louisiana. Defendant was transferring his
mail to his father’s house, and at the time, defendant was taking care of his father’s dog at
the house. The Toyota belonged to his father, and defendant had agreed to put new
brakes on it. The other people who had been staying at defendant’s father’s house had
access to the car.
       On the day of his arrest, defendant had his wallet on him with $1,500 in it that he
had won at the casino. In addition to the two officers who stopped them, there were other
officers at the scene. The officers who had initially stopped defendant searched the car
and took defendant’s wallet. The officers spent about 20 minutes searching the car.
Defendant asserted that no one was staying in the bedroom at his father’s house, and that
he did not know the gun was in the dresser.
       The jury convicted defendant on count 2, and deadlocked 11 to 1 in favor of
finding defendant guilty on count 1. The court declared a mistrial on that count. Before
sentencing, defendant pleaded no contest to count 1, a violation of Health and Safety
Code section 11351.5, and the trial court found defendant guilty. The trial court
sentenced defendant to five years on count 1 (consisting of the midterm of four years plus
one year for the prior felony enhancement), and two years on count 2, to run concurrently
with his sentence on count 1.
                                      DISCUSSION
       Defendant argues his conviction on count 2 for unlawful possession of a firearm
must be reversed because the trial court improperly excluded evidence that Sergeant
Jones had planted evidence in another case, and the trial court’s conclusion the evidence
was not relevant is not supported by the record. Defendant also requests we conduct an
independent review of his Pitchess motion with respect to the personnel records of the
deputies involved in the search of his house. He contends he cannot determine if the trial
court complied with the procedures outlined in People v. Mooc (2001) 26 Cal.4th 1216.
He requests that if we determine the trial court erred in denying Pitchess discovery, we
remand the matter to order disclosure.


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I.     THE MATTER IS REMANDED FOR FURTHER PITCHESS DISCOVERY
       A.     Factual Background
       Before trial, defendant made Pitchess motions to discover the personnel files of
Deputies Fitzgerald, Jones, Missakian, Saavedra, Lopez, Franklin, and Retamoza (the
deputies involved in his arrest and the search of his house). Defendant specifically sought
the identity of persons accusing the deputies of misconduct, the identities of persons
interviewed as potential witnesseses to any misconduct, and the nature and dates and
location of such misconduct. The trial court conducted an in camera Pitchess hearing and
released to defendant certain personnel records of the deputies involved in the arrest and
search of his house. The trial court did not order all records released.
       During trial, the defense indicated it wished to call several Pitchess witnesses,
including James Jones, who would testify that Sergeant Jones had planted evidence.
James Jones, who did not have any narcotics in his car, was stopped by Sergeant Jones
and taken to the station. Sergeant Jones “went across the parking lot to a door,” returned
with drugs, and stated, “This is what I found.” Defense counsel argued Sergeant Jones’s
conduct was similar to the facts of defendant’s case: Sergeant Jones was one of the
officers who was inside the house, and significant evidence (the gun and a large piece of
rock cocaine) was found inside the house. The court responded that Sergeant Jones was
not the one who did the initial search; rather, the other officers did the initial search and
Sergeant Jones was “just in and out” and was “just the supervisor.” The court excluded
the testimony, finding that “based on the facts that were brought out during the cross-
examination and these particular facts and the involvement of Sergeant Jones, I’m going
to exclude [James Jones’s] testimony.”
              B.      Discussion
       In Pitchess v. Superior Court, supra, 11 Cal.3d 531, the California Supreme Court
“recognized that a criminal defendant may, in some circumstances, compel the discovery
of evidence in the arresting law enforcement officer’s personnel file that is relevant to the
defendant’s ability to defend against a criminal charge.” (People v. Mooc, supra, 26


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Cal.4th at p. 1219.) As explained in Mooc, “[w]hen a trial court concludes a defendant’s
Pitchess motion shows good cause for discovery of relevant evidence contained in a law
enforcement officer’s personnel files, the custodian of the records is obligated to bring to
the trial court all ‘potentially relevant’ documents to permit the trial court to examine
them for itself. [Citation.] A law enforcement officer’s personnel record will commonly
contain many documents that would, in the normal case, be irrelevant to a Pitchess
motion, including those describing marital status and identifying family members,
employment applications, letters of recommendation, promotion records, and health
records. (See Pen. Code, § 832.8.) Documents clearly irrelevant to a defendant’s
Pitchess request need not be presented to the trial court for in camera review. But if the
custodian has any doubt whether a particular document is relevant, he or she should
present it to the trial court. Such practice is consistent with the premise of Evidence Code
sections 1043 and 1045 that the locus of decisionmaking is to be the trial court, not the
prosecution or the custodian of records. The custodian should be prepared to state in
chambers and for the record what other documents (or category of documents) not
presented to the court were included in the complete personnel record, and why those
were deemed irrelevant or otherwise nonresponsive to the defendant’s Pitchess motion.
A court reporter should be present to document the custodian’s statements, as well as any
questions the trial court may wish to ask the custodian regarding the completeness of the
record. [Citation.]” (Mooc, at pp. 1228–1229.) The trial court should make a record of
what documents it examined by, for example, photocopying them, listing them, or simply
stating for the record what documents it examined. (Ibid.)
       Trial courts are vested with broad discretion when ruling on motions to discover
peace officer personnel records, and we review the trial court’s rulings for abuse of
discretion. (People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Mooc, supra, 21
Cal.4th at p. 1228.)
       We have reviewed the sealed transcripts of the in camera hearing conducted. We
find the court failed to make an adequate record under People v. Mooc, supra, 21 Cal.4th


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1216, to permit meaningful review of the materials examined at the Pitchess hearing. Our
review of the record indicates some of the document descriptions and/or misconduct
described is unclear. The trial court is directed to conduct another Pitchess hearing
concerning the materials requested by defendant. In addition, we find that the trial court
erred in failing to release to defendant the complaint against Deputies Retamoza and
Franklin as described in the sealed Pitchess hearing transcript at page B9, lines seven
through 11.
       Upon issuance of the remittitur, the trial court first is to conduct another Pitchess
hearing, make a record of those documents reviewed, and is to order disclosure of any
relevant documents to defendant. The trial court is also directed to order the disclosure of
the above-specified complaint against Deputies Retamoza and Franklin to defense
counsel with the requisite protective order. (Evid. Code, § 1045, subd. (e); Alford v.
Superior Court (2003) 29 Cal.4th 1033, 1039–1047.) Defendant shall then be given a
reasonable period of time to locate and interview any witnesses disclosed by the
complaint and any additional Pitchess materials released. At the conclusion of that
reasonable period of time, defendant may present evidence on this issue and make a
showing of prejudice. The trial court shall then decide if these witnesses and James Jones
had been called to testify, there is a reasonable probability defendant would have received
a more favorable result at trial; if the trial court concludes there is a reasonable
probability of a different result, then a new trial is to be ordered. If the trial court
concludes there is no reasonable probability of a different result, the judgment is to be
reinstated. (People v. Guevara (2007) 148 Cal.App.4th 62, 69–70.) As our ruling in this
regard mandates reversal and defendant shall be given the opportunity to present evidence
and make a showing of prejudice, we do not reach the issue of whether the trial court
properly excluded James Jones’s testimony at defendant’s trial in this matter.




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                                      DISPOSITION
       The judgment is reversed and the cause remanded with directions to the trial court
to conduct another Pitchess hearing, to make a record of those documents reviewed, and
in accord with the standards set forth in People v. Mooc, supra, 26 Cal.4th 1216 to order
disclosure of any relevant documents to defendant. The trial court is also directed to
order the last complaint identified at the January 4, 2012 Pitchess hearing relating to
Deputies Edward Retamoza and Tony Franklin be disclosed to defendant, and to permit
defendant to present evidence and make a showing of prejudice. If defendant is able to
demonstrate that he was prejudiced by the denial of the discovery and the exclusion of the
testimony of James Jones, the trial court must order a new trial. If defendant is unable to
show any prejudice, then the conviction and judgment are ordered reinstated. In any
instance, the trial court’s rulings shall be subject to review on appeal.
       NOT TO BE PUBLISHED.


                                           JOHNSON, J.


We concur:


              MALLANO, P. J.


              ROTHSCHILD, J.




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