Filed 12/23/14 P. v. Johnson 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yolo)
                                                            ----




THE PEOPLE,                                                                                  C073854

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF111747)

         v.

CALVIN JOHNSON,

                   Defendant and Appellant.




         A jury found defendant Calvin Johnson guilty of second degree robbery and
assault with a deadly weapon. The trial court sentenced defendant to three years in state
prison. On appeal, defendant contends the trial court erred in denying his Pitchess1
motion to discover material contained in the personnel file of Davis Police Officer Mike




1        Pitchess v. Superior Court (1974) 11 Cal.3d 531.

                                                             1
Munoz. He further contends, and the People concede, that the abstract of judgment
should be corrected to reflect the court’s award of presentence custody credits.
       We shall order the abstract corrected to reflect defendant’s presentence custody
credits. As modified, we affirm.
                      FACTUAL AND PROCEDURAL HISTORY
       Victim Amir Anjomshoaa posted an offer on Craigslist to sell an iPhone for $600.
On September 26, 2010, defendant called Anjomshoaa in response to the ad and offered
to purchase the phone for $580. The two agreed to meet that day in a Safeway parking
lot near Anjomshoaa’s house in Davis. Anjomshoaa and defendant met in the parking lot
as planned. When Anjomshoaa showed defendant the phone, defendant tested it, said he
liked it, and told Anjomshoaa to walk with him to his car to retrieve the money to pay for
it. The two men walked to a red Ford Mustang. Defendant opened the passenger side
door, got in, opened the glove box, and began “going through his stuff.” Anjomshoaa
looked in the glove box and saw there was no money, then realized the car was running
and there was someone behind the wheel. Defendant yelled, “go” and tried to close the
door. Anjomshoaa used his arm to prevent the door from closing and held onto the
handle just inside the door frame as the car started moving toward the parking lot exit.
Anjomshoaa held on as he ran with the car and called out for help. He saw his charger
and a USB cable on the ground but kept running. Defendant, still in possession of the
phone, told the driver to “keep going, keep going.” Anjomshoaa fell and was dragged by
the car for approximately 300 feet, all the while telling defendant, “give me back my
phone,” and yelling, “call the cops, call the cops.”
       Eventually, Anjomshoaa let go of the car as it headed toward the exit of the
parking lot. Despite the fact that Anjomshoaa’s legs were burned, he continued to chase
after the car until bystanders stopped him. The police arrived shortly thereafter.
Anjomshoaa was treated at the scene by emergency personnel and then taken to UC
Davis Medical Center. Anjomshoaa identified defendant at trial.

                                              2
       That same day, Ruben Ponce, his wife, Maria Ponce, and sons, Daniel Vega and
Ruben Ponce, Jr., were eating lunch in their car, which was parked in the Safeway
parking lot. Ruben, Maria, and Vega all heard Anjomshoaa screaming and saw him
being dragged along by a red Mustang until he either fell or let go. Anjomshoaa gave
chase, and the Ponces followed, until the Mustang drove out of the parking lot.
       At some point prior to the Mustang exiting the parking lot, Vega saw someone
toss a phone out of the car. The damaged phone was picked up by some kids, who put it
next to a trash can. When Davis Police Officer David Martin responded to the scene,
Vega directed him to the trash can where the phone defendant took from Anjomshoaa
was found.
       Whitney Brim-DeForest, her husband, Hamady Balde, and their two-year-old son
were also in their car in the Safeway parking lot on September 26, 2010. Brim-DeForest
saw a red Mustang go “whizzing past,” dragging Anjomshoaa who was hanging onto the
open passenger door frame. The Mustang traveled approximately 20 or 30 feet before
Anjomshoaa fell off.
       Anjomshoaa provided Davis Police Detective Stephen Ramos with the number
associated with his cell phone, as well as text messages relevant to the incident, all of
which provided the basis for issuance of a search warrant. Cell phone records obtained
pursuant to that warrant revealed that one of the phone numbers matched defendant’s
number. From that information, Detective Ramos prepared a photographic lineup and
showed it to Anjomshoaa, who identified defendant. Detective Ramos arrested
defendant. Although defendant acknowledged being the person involved in the
September 26, 2010, incident, he told Detective Ramos he dropped the phone outside the
car when he decided not to buy it, but Anjomshoaa kept running next to the car and
hitting it and yelling. Defendant also told police the driver of the Mustang was someone
named “Terese.”



                                              3
       Before trial, defense counsel received an e-mail from the district attorney stating:
“I am informed that there may be Brady2 material in the personnel file of Mike Munoz at
the Davis Police Department. I have no access to officer personnel files.” According to
the police report associated with defendant’s case, Officer Munoz prepared a photo
lineup containing a DMV photo of the female registered owner of the Mustang involved
in the incident. The photo lineup was shown to Vega, who was unable to identify
anyone.
       In response to the district attorney’s e-mail, defense counsel filed a Pitchess
motion seeking to discover evidence in Officer Munoz’s personnel file pertaining to:
(1) records or complaints against Officer Munoz, or possible disciplinary action against
Officer Munoz; (2) disciplinary actions taken or to be taken due to “a demonstration of
social, ethnic or other prejudice or allegation of misconduct”; (3) any incident involving
lying, untruthfulness, falsifying evidence, and/or dishonesty; (4) the identity of persons
submitting complaints of the aforementioned acts; (5) the identity of persons interviewed
in connection with “complaints of excessive force, racial bias, ethnic prejudice, abuse of
authority, and/or dishonesty in the course of [Officer Munoz’s] employment”; and
(6) information regarding Officer Munoz which forms the basis for litigation arising from
claims or lawsuits “for use of excessive force, of aggressive conduct or of violence or
demonstration of social, ethnic prejudice, or dishonesty in the course of [Officer
Munoz’s] employment.”
       Defense counsel’s declaration in support of the motion stated that, based on the
fact that “[d]efendant herein and the driver of the car allegedly used as the weapon in this
case are both African American,” any “complaints of dishonesty, racial, social bias or
prejudice by [Officer Munoz] . . . would tend to show or will lead to evidence which will




2      Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215].

                                             4
show a tendency or propensity on the part of [Officer Munoz] to engage [in] racial, social
bias, prejudice in the execution of arrests, falsification of police reports, abuse of
authority and compulsion to make narcotics arrests and/or use poor judgment,” and such
information was “critical as to the Officer’s character for honesty and truthfulness.” The
declaration also stated the requested records may contain documentation of “allegations
of the use of excessive force and/or violence towards suspects.”
       At the hearing on defendant’s motion, the court expressed concern regarding the
basis for the Pitchess motion given Officer Munoz’s minimal participation in defendant’s
case. Agreeing that Officer Munoz’s participation involved little more than preparing the
photo lineup of the alleged driver, defense counsel insisted her obligation to determine
whether the officer’s personnel file contained Brady material required her to file the
Pitchess motion in order to obtain that material. The court stated, “I’m not going to look
at the file for Pitchess material. I don’t think there’s any relevance or any basis for
Pitchess, and you are telling me that’s not what you are after anyway.” Defense counsel
responded, “I have no idea.” The court clarified, “You just want to know what Brady
material if any is in there.” Defense counsel answered, “That’s true.”
       After reviewing the file to “see if there’s some Brady material there that needs to
be turned over,” the court concluded, “There’s no Brady material in the file and I can’t
tell you what the DA was referring to, but there is -- it has absolutely nothing to do with
this case. It’s not Brady material and there’s just nothing there.” Defense counsel
responded, “That’s all we needed . . . . [¶] As long as you filed my motion and the Court
reviewed it, I’m very happy.”
       The matter proceeded to trial, after which a jury found defendant guilty as
charged. At sentencing, the court sentenced defendant to three years in prison and
imposed specified fees, fines, and assessments. The court subsequently awarded
defendant presentence custody credits.
       Defendant filed a timely notice of appeal.

                                               5
                                       DISCUSSION
                                              I
                                      Pitchess Motion
       Defendant contends the trial court erroneously denied his motion to discover
information in Officer Munoz’s personnel file under Pitchess. He requests this court to
review the personnel records of Officer Munoz examined by the trial court to determine
whether the trial court abused its discretion in “refusing to disclose [Pitchess]
information.” He urges that, in the event the trial court failed to “make a record of what
documents it reviewed” (People v. Mooc (2001) 26 Cal.4th 1216, 1228), we must remand
this matter to the trial court with directions to comply with the Mooc requirements and
augment the record to ensure a complete record for review on appeal. We find no abuse
of discretion.
       A defendant seeking discovery of material under Pitchess must support his motion
with “affidavits showing ‘good cause for the discovery,’ first by demonstrating the
materiality of the information to the pending litigation, and second by ‘stating upon
reasonable belief’ that the police agency has the records or information at issue. ([Evid.
Code] § 1043, subd. (b)(3).)” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019
(Warrick).)
       A showing of good cause requires that defendant “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.) “To show good
cause as required by [Evidence Code] section 1043, defense counsel’s declaration in
support of a Pitchess motion must propose a defense or defenses to the pending charges.
The declaration must articulate how the discovery sought may lead to relevant evidence
or may itself be admissible direct or impeachment evidence [citations] that would support
those proposed defenses.” (Warrick, supra, 35 Cal.4th at p. 1024.)

                                              6
       We review the trial court’s denial of discovery of information from police
personnel files for an abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th
970, 992; Pitchess v. Superior Court, supra, 11 Cal.3d at p. 535.)
       There was no abuse of discretion here. The district attorney notified defendant
that there might be Brady material in Officer Munoz’s personnel records. Defendant
filed a Pitchess motion seeking the trial court’s review of those records for Brady
material. The trial court granted the motion, the basis for which was the district
attorney’s notification to defendant of possible Brady evidence. The court reviewed the
records for Brady material and concluded there was no Brady material in Officer
Munoz’s personnel file. That is all trial counsel wanted.
       Now arguing the court should have reviewed the file for Pitchess material,
defendant failed to establish good cause for the requested discovery, stating only that he
had “been advised by the prosecution that there may be Brady materials in the employee
file of one of the investigating officers, Mike Munoz,” and that “[i]t is suspected that the
Pitchess and/or Brady information directly relates towards this officer’s credibility, racial
bias or discrimination, or some form of due diligence on the job.” Defense counsel’s
supporting declaration added little, other than to state that defendant “and the driver of
the car allegedly used as the weapon in this case are both African American.”
       Neither the motion nor the supporting declaration stated a proposed defense or
attempted to establish a link, logical or otherwise, between that defense and the charges
against defendant. While alluding to racial prejudice or bias on the part of Officer
Munoz, the motion failed to assert specific facts of misconduct on the part of Officer
Munoz related to the incident, or how all or any of the information sought supports the
proposed defense or impeaches Officer Munoz’s version of events. Indeed, the jury
never heard Officer Munoz’s version of events because he never testified at trial. And,
while the police report attached to defendant’s motion shows Officer Munoz prepared
and presented to Vega the photo lineup that included the DMV photo of the registered

                                              7
owner of the Mustang, Vega was not able to make an identification from that photo
lineup.
          While defendant now alludes to the fact that Officer Munoz, as “the supervising
officer in charge of approving the investigative reports [authored] by [Officers]
Arimboanga, Chudomelka, and Martin” (all three of whom did testify at trial), could have
abused his authority, falsified reports, or acted with racial bias or prejudice, defendant
made no similar assertion of misconduct below and the record is devoid of facts to
support such an assertion.
          Because defendant provided no logical link between his proposed defense and the
charges against him, and in the absence of specific allegations of misconduct by Officer
Munoz, defendant failed to establish a “ ‘plausible factual foundation’ ” or to “ ‘articulate
a valid theory as to how the information sought might be admissible’ ” at trial. (Warrick,
supra, 35 Cal.4th at p. 1025.) In short, defendant’s Pitchess motion failed to make a
proper showing of materiality. (Warrick, at pp. 1024-1025.)
          Most important, the statements of defendant’s trial counsel in response to the
court’s questions and comments regarding the scope of the Pitchess motion and its
conclusion following review of the records, demonstrate that the Pitchess motion was
intended as nothing more than a procedural vehicle by which to identify what, if any,
Brady material, might be in Officer Munoz’s file. Having conceded as much at the
hearing below, defendant cannot now be heard to complain that the trial court erred in
denying Pitchess review.
                                               II
                                 Presentence Custody Credits
          Defendant contends the judgment should be amended to reflect the trial court’s
award of 39 days of presentence custody credit. The People concede this point, and we
agree that the abstract needs correction.



                                               8
       Every day a defendant spends in custody is credited to his period of confinement
pursuant to Penal Code section 4019. (Pen. Code, § 2900.5.) The sentencing court has a
duty to determine the total number of days to be credited to defendant, and to include that
number in the abstract of judgment. (Pen. Code, § 2900.5, subd. (d).)
       At the May 9, 2013, sentencing hearing, the trial court imposed sentence but
reserved the issue of defendant’s custody credits for a subsequent hearing. The abstract
of judgment, with the “credit for time served” left blank, was filed the following day.
       At the May 22, 2013, continued sentencing hearing, the trial court ordered that
defendant be awarded 34 days of actual custody credit, plus five days of conduct credit,
for a total of 39 days of presentence custody credit. No amended abstract of judgment
was issued.
       Accordingly, defendant is entitled to 39 days of presentence custody credit.
                                      DISPOSITION
       The trial court is directed to prepare a corrected abstract of judgment reflecting the
custody credit award and forward a certified copy of the corrected abstract to the
Department of Corrections and Rehabilitation. The judgment is affirmed.



                                                        ROBIE                  , Acting P. J.



We concur:



      MURRAY                , J.



      DUARTE                , J.



                                             9
