Filed 6/24/14 P. v. Ayala CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048613

                   v.                                                  (Super. Ct. No. 11WF1121)

THOMAS AYALA,                                                          OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Gary S.
Paer and John Conley, Judges. Reversed with directions.
                   Allen G. Weinberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.


                                             *               *               *
              A jury convicted defendant Thomas Ayala of 10 counts of committing a
lewd act on a child under age 14 (Pen. Code, § 288, subd. (a); all further statutory
references are to this code), four counts of committing a lewd act on a 14 or 15-year-old
child who is at least 10 years younger than defendant (§ 288, subd. (c)(1), and one count
of forcible rape (§ 261, subd. (a)(2)). It also found true allegations defendant had
substantial sexual conduct with minors under the ages of 11 and 14. (§ 1203.066, subd.
(a)(8).) The trial court sentenced defendant to 45 years to life in prison.
              Before trial, defendant moved for discovery of the personnel records of
Officers Tran and Valencia, who had had contacted him at his residence. (Pitchess v.
Superior Court (1974) 11 Cal.3d 531 (Pitchess)). Defendant sought access to “all
documents . . . pertaining to [“[l]ack of credibility/falsifying police reports,” “[p]rior acts
involving moral turpitude,” and “[w]hether the officers were previously employed by a
law enforcement agency other than the Garden Grove Police Department”] . . . , including
but not limited to documentation of citizen or law enforcement complaints of such
conduct and any investigation into the officer[s’] conduct in the case at bar.” The court
found good cause to hold an in camera hearing as to Officer Valencia.
              At that hearing, the temporary custodian of records for the Garden Grove
Police Department stated under oath that he had obtained personnel records for Officer
Valencia from his personnel and internal affairs files, as well as “a preemployment file
which [he] did not bring because it was prior to [Valencia’s] employment as a peace
officer.” When asked by the court, the custodian testified that upon reviewing those files,
he “found nothing” touching on “issues of veracity, credibility, dishonesty, fabricated
reports, [or] anything along those lines,” including “citizen complaints dealing with
veracity issues,” or “investigations[ or] allegations of dishonesty in either file” despite
Valencia’s eight years with the Garden Grove Police Department. The court declared, “It
looks as though there’s nothing to disclose; so therefore, if there’s nothing to disclose, we



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don’t need a protective order.” After the hearing, it told defendant “there is nothing to
discover at this point in relation to Officer Valencia.”
              Defendant requests that we conduct an independent review of the in camera
proceedings to determine whether the trial court followed the appropriate procedure and
properly exercised its discretion in concluding that the records did not contain any
discoverable information. The Attorney General does not oppose the request and
“concurs review is appropriate.” Upon reviewing the sealed record of the proceedings,
we conclude it does not permit us to conduct any meaningful review of whether the court
appropriately exercised its discretion in denying discovery. We thus reverse the
judgment and remand for the limited purpose of conducting a new Pitchess hearing in
accordance with the principles expressed below. In light of our conclusion, it would be
premature to address defendant’s argument the judgment should be modified to reflect
two additional days of custody credit and we decline to do so.


                                       DISCUSSION


              “Although the custodian of records was required to submit for review only
those documents that were potentially responsive to the discovery request, our Supreme
Court has directed that ‘[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.’ [Citation.] Moreover, ‘if
the custodian has any doubt whether a particular document is relevant, he or she should
present it to the trial court.’ [Citation.] [¶] Accordingly, in cases such as this where the
custodian of records does not produce the entire personnel file for the court’s review, he
or she must establish on the record what documents or category of documents were
included in the complete personnel file. In addition, if it is not readily apparent from the

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nature of the documents that they are nonresponsive or irrelevant to the discovery
request, the custodian must explain his or her decision to withhold them. Absent this
information, the 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.’
[Citation.] It is for the court to make not only the final evaluation but also a record that
can be reviewed on appeal.” (People v. Guevara (2007) 148 Cal.App.4th 62, 68-69.)
              In People v. Guevara, supra, 148 Cal.App.4th 62, only a list of documents
contained in the subject officers’ personnel files was provided to the trial court during an
in camera hearing on a Pitchess motion. Other than the list, there was no record of the
documents in the officers’ files or any explanation as to why they were withheld. There
was also “no indication that the trial court actually reviewed the list the city attorney
submitted in support of the custodian of record’s decision to produce no records for the
court’s examination.” (Id. at p. 69) Because that list was not included in the appellate
record and could not be located, the appellate court was unable to review it. Under these
circumstances, the court “reverse[d] the judgment and remand[ed] for a new Pitchess
hearing in which the proper procedure is followed.” (Ibid.)
              We shall do the same. The record does not indicate whether the court
reviewed any of the documents or that a list of documents was even prepared by the
temporary custodian of record in support of his decision not to produce any records for
the court’s review. Nor did the court question the custodian about what documents or
categories of documents were contained in the files he reviewed. Rather, the court
impermissibly deferred to the custodian’s judgment about whether disclosure was
appropriate and did not make a record of the documents that were subject to his
determination. This leaves us unable to conduct any meaningful review on appeal.

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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 (or obtain a list of their contents) and confirm the conclusion of the custodian of
records. If, however, the 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.)


                                       DISPOSITION


              The judgment is reversed. The cause is remanded to the trial court with
directions to hold 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 custodian 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.




                                                   RYLAARSDAM, ACTING P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.



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