Filed 10/15/13 P. v. James 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C071374

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F01097)

         v.

LOVIE JAMES,

                   Defendant and Appellant.




         A jury convicted defendant Lovie James of attempted voluntary manslaughter
(Pen. Code, §§ 664/192, subd. (a)),1 corporal injury to a cohabitant (§ 273.5, subd. (a)),
elder abuse (§ 368, subd. (b)(1)), criminal threats (§ 422), and theft or taking of a vehicle
(Veh. Code, § 10851, subd. (a)), and sustained great bodily injury allegations (§ 12022.7,
subds. (a), (e)). After sustaining a strike, a serious felony and three prior prison term
allegations (§§ 667, subds. (a), (b)-(i), 667.5, subd. (b), 1170.12), the trial court sentenced
defendant to 23 years in state prison.



1        Undesignated statutory references are to the Penal Code.

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       Defendant’s sole contention on appeal is the trial court abused its discretion in
concluding, after an in camera review, that there were no documents discoverable to
defendant pursuant to his motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531
(Pitchess). Having undertaken an independent review of the sealed records, we find no
abuse of discretion and affirm the judgment.
                                     BACKGROUND
       Around midnight on February 4, 2011, Elk Grove Police Officer Andrew
Bornhoeft and his partner Officer Phillip Insixiengmay responded to a domestic violence
call at Florence Taylor’s Elk Grove home. Officer Bornhoeft found the 69-year-old
Taylor standing in the garage. Her face was swollen and discolored, her right eye was
discolored, very swollen and completely closed, and her left eye was also discolored and
swollen. She also had bruises and contusions on her face.
       Officer Bornhoeft asked Taylor to come inside and sit. Entering the home, he
smelled a strong odor of gasoline and saw a red gasoline can sitting on top of the dryer.
What appeared to be fecal matter and vomit were in the kitchen, and dentures were on the
floor. Taylor told him that defendant beat and choked her and said he was going to kill
both of them that night. She told Officer Bornhoeft that defendant took her car without
her permission after the assault.
       Cosumnes Fire Department paramedic Justin Quarisa arrived at the scene and saw
Taylor lying down in the bedroom talking to a police officer. Quarisa noticed Taylor
“had a lot of facial injuries.” Taylor told him that she had been struck multiple times in
the face with a fist, had been slammed into some cupboards, dragged across the floor, and
doused with gasoline.
       Elk Grove Police Detective Greg Kawamoto interviewed Taylor later the same
day at the hospital. A recording of the interview was played to the jury. Taylor told
Detective Kawamoto that defendant pulled her out of her bed by her neck and threw her



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on the floor and started stomping on her stomach. He also hit her in the head. Defendant
held a lighter in his hand and threatened to burn her after he poured gasoline on her.
       Taylor suffered bleeding around the brain and facial fractures as a result of the
attack. Her injuries were consistent with having been beaten and kicked.
       Taylor was unavailable for trial so her preliminary hearing testimony was admitted
as evidence. Taylor testified that defendant was her live-in boyfriend. She argued with
defendant on the day of the incident because he did not come home on time. The
argument took place in the kitchen, where she “started swinging” even though defendant
did not touch her. Defendant walked to the kitchen and Taylor followed, continuing the
argument. She bumped into defendant, slipped and fell, hitting her head on the corner of
her granite island. Defendant was gone when she got up. Her nephew Anthony Clark
showed up, and then “the fire department and the police and everything was [sic] at [her]
house.” She did not talk to any officer about the incident. Defendant did not throw gas
on her; she put the gas can in her home earlier that day. Her car was gone when she came
home from the hospital and she did not give defendant permission to take it.
       Taylor visited defendant at the Sacramento County jail 58 or 59 times between
December 11, 2011, and February 7, 2012. In a call to Taylor from jail, defendant told
her, “I flashback on that scene, baby, and I hate it. I apologize to you.” In another call,
Taylor told defendant he broke her ribs and he replied, “For real? No, honest, come on. I
ain’t broke no ribs.” Later, defendant told Taylor he took her car because he had to get
away. Defendant asked Taylor if she loved him and she replied, “I don’t love nobody
that’s done tried to kill me.” In another call, defendant told Taylor he had never done a
thing to her until they “had the fight and the violence.” During the call, Taylor told
defendant, “You choked me.”
       Before trial, defendant filed a Pitchess motion for the discovery of records
regarding Officers Bornhoeft and Insixiengmay and Detective Kawamoto. In a
supporting affidavit, defense counsel alleged the gas can in Taylor’s home may have been

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moved, and Officers Bornhoeft and Insixiengmay and Detective Kawamoto had access to
the can. The affidavit also noted that Taylor said she never consented to a search of her
house and that there was no mention of consent to a search during her interview with
Detective Kawamoto. The Pitchess motion sought civilian complaints against the three
officers regarding falsification of reports, falsification of consent to search, or tampering
with evidence.
        Following a contested hearing, the trial court found good cause to conduct an in
camera review of the officers’ records. After conducting the review, the trial court
determined that there were no documents subject to discovery.
                                        DISCUSSION
        Defendant requests independent review of the records presented to the trial court
in camera to determine whether it was an abuse of discretion to deny defendant access to
such records. (Pitchess, supra, 11 Cal.3d 531; People v. Prince (2007) 40 Cal.4th 1179,
1285-1286 [trial court’s decision on discoverability of material in officer’s files reviewed
for abuse of discretion].)
        As is customary, the records have been made part of the appellate record, but
sealed, and appellate counsel for defendant has not been permitted to view them.
(See Cal. Rules of Court, rule 8.328(c).) We have independently examined the in camera
documents and reporter’s transcript of the trial court’s in camera hearing and review, and
conclude the trial court followed the required procedure for in camera review under
Pitchess (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229), that the record is adequate
for meaningful appellate review (People v. Myers (2007) 148 Cal.App.4th 546, 553), and
that the trial court did not abuse its discretion in refusing to disclose the contents of the
officers’ personnel files on defendant’s Pitchess motion. (People v. Myers, supra, at p.
553.)




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                                   DISPOSITION
     The judgment is affirmed.



                                                 NICHOLSON   , J.



We concur:



      BLEASE          , Acting P. J.



      HULL            , J.




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