Filed 9/14/16 P. v. Frazier 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070425
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. DF010982A)
                   v.

RODNEY FRAZIER,                                                                          OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.
         Kelly C. Martin, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry
Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Gomes, Acting P.J., Kane, J. and Franson, J.
       Appellant Rodney Frazier appeals from his conviction for possessing a sharp
instrument while confined in a penal institution (Pen. Code, § 4502, subd. (a)), seeking
review of the Pitchess1 and Brady2 hearing conducted by the trial court. For the reasons
set forth below, we conditionally reverse the judgment and remand for proceedings
consistent with this opinion.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Appellant, an inmate, was residing at the Kern Valley State Prison in Delano. On
September 11, 2012, during a search of his wheelchair, Correctional Officer Mario
Lozano found two inmate-manufactured weapons consisting of metal sharpened to a
point. Appellant was charged with possessing a sharp instrument while confined in a
penal institution.
       In his defense, appellant alleged Officer Lozano had not, in fact, discovered the
weapons in his wheelchair and sought discovery, both of Pitchess and Brady materials,
from the personnel files of various correctional officers involved in his search to support
that defense. Following a hearing, the trial court granted review of Officer Lozano’s
personnel files for material relating to “false reports or dishonesty” but was hesitant to
grant discovery of any materials greater than five years old on Brady grounds, taking the
issue under submission while questioning whether “Brady just undoes the five-year limit”
statutorily imposed for discovery of Pitchess materials. The trial court then held an in
camera hearing to review materials under appellant’s motion. As a result, it ordered the
production of materials under Pitchess but denied “the request of defense counsel for
disclosure beyond five years on ‘Brady’ grounds.”




1      Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
2      Brady v. Maryland (1963) 373 U.S. 83 (Brady).


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       In August 2014, appellant proceeded to trial and was convicted by a jury. In
October 2014, appellant was sentenced. This appeal timely followed.
                                       DISCUSSION
The Trial Court Incorrectly Limited the Production of Brady Materials
       Appellant argues the trial court erred in limiting the production of Brady materials
to “specific instances of false reporting or dishonesty” which are less than 5 years old.
We agree that limiting production of Brady materials to the last five years was an error.
The California Supreme Court has long made clear that the productions required under
Brady and Pitchess are distinct, but operate in parallel when it comes to confidential
personnel files. Material required to be disclosed under Brady is generally narrower than
that what must be disclosed under Pitchess, as it is limited to exculpatory material, but is
also broader because it is not bound by the statutory time limit on production set forth for
Pitchess proceedings. (See City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 14
(City of Los Angeles); People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 720
(Johnson).) However, because personnel files are granted qualified statutory
confidentiality, the trial court could rightly limit its search to material evidence for which
appellant had established a basis to search. (City of Los Angeles, supra, 29 Cal.4th at
p. 14-15; Johnson, supra, 61 Cal.4th at p. 722 [noting “the court need not review
everything in the personnel records, but only those portions that might be relevant.”].)
       The trial court restricted the production of Brady materials to those documents less
than five years old under the apparent belief that granting full production would vitiate
the statutory limitations set forth for the Pitchess procedure. This concern is unfounded.
The statutory five-year production limitation under Evidence Code section 1045 sets the
general boundaries for relevant material under the Pitchess standards. It does not,
however, expressly limit what must be reviewed when an appropriate showing has been
made that relevant evidence may exist. (Evid. Code, § 1045, subd. (b)(1).) Once the trial
court granted appellant’s request for review, it should have searched for all material

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information within Officer Lozano’s file, regardless of age, that fell within the type
shown by appellant to be appropriately searched—in this case “specific instances of false
reporting or dishonesty.” As the material which must be produced under Brady is
narrower in scope but broader in time than that which must be produced under Pitchess,
completing a full Brady review does not vitiate the statutory limitations on production
under Pitchess, but rather ensures both independent doctrines are satisfied. The trial
court’s failure to conduct a full review was thus improper.
        Both parties agree that the proper procedure when a trial court fails to engage in a
complete review of material properly requested is to conditionally vacate the judgement
and remand for further review. If, upon further review, the trial court finds material that
should have been produced, the trial court should order production and provide appellant
an opportunity to prove the lack of production was prejudicial; if no prejudice is shown,
the judgment should be reinstated. If no additional material is deemed discoverable, then
the judgment should be reinstated. (See People v. Gaines (2009) 46 Cal.4th 172, 180-
181.)
Independent Pitchess Review
        The trial court agreed to conduct a review of the materials less than five years old
contained in Officer Lozano’s personnel files. Both the People and appellant request we
independently review these proceedings.
        Pitchess motions are the well-settled mechanism by which defendants can screen
law enforcement personnel files for evidence that may be relevant to their defense
without compromising the officer’s reasonable expectation of privacy in those records.
(People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc).) Subject to various restrictions
not relevant here, a trial court must conduct an in camera review of potentially relevant
personnel files if the defendant makes a showing of good cause for the discovery. (Id. at
p. 1226.)



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         This process is effectuated by having a custodian of records collect all potentially
relevant documents from identified personnel files and present them to the trial court.
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.” (Mooc, supra, 26 Cal.4th at p. 1229.)
         The trial court must then make a record of what documents it has examined to
permit future appellate review. (Mooc, supra, 26 Cal.4th at p. 1229.) “If the documents
produced by the custodian are not voluminous, the court can photocopy them and place
them in a confidential file. Alternatively, the court can prepare a list of the documents it
considered, or simply state for the record what documents it examined.” (Ibid.) These
proceedings are then sealed. (Ibid.)
         Upon appeal, we independently examine the record made by the trial court “to
determine whether the trial court abused its discretion in denying a defendant’s motion
for disclosure of police personnel records.” (People v. Prince (2007) 40 Cal.4th 1179,
1285.)
         We have reviewed the full set of transcripts and documents relevant to this issue.
The trial court complied with the required Pitchess procedures. Two custodians of record
were present and placed under oath, and several declarations were also submitted.
Potentially relevant documents were reviewed and considered in light of appellant’s
discovery motion. The court created an accounting of what was reviewed, produced the
relevant documents, and placed on the record why the remaining were not relevant or
subject to production. And these proceedings were stenographically recorded. (Mooc,
supra, 26 Cal.4th at p. 1229.) Our independent review finds the trial court did not abuse
its discretion in these proceedings with respect to those materials less than five years old
in Officer Lozano’s personnel files. Only one complaint was reviewed which was not



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produced. Our independent review shows this complaint was not related to “false reports
or dishonesty” and, thus, was properly withheld from production.




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                                      DISPOSITION
         The judgment is conditionally reversed. The case is remanded for the trial court to
complete its review of Officer Lozano’s personnel files in a manner consistent with this
order.




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