Filed 10/30/13 P. v. Harmon CA2/8
              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SECOND APPELLATE DISTRICT

                                            DIVISION EIGHT


THE PEOPLE,                                                          B243880

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. LA 070676)
         v.

KELLY HARMON,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Joseph A. Brandolino, Judge. Affirmed.


         Cynthia A. Grimm, under appointment by the Court of Appeal, for
Defendant and Appellant.


         No appearance for Plaintiff and Respondent.


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      After hearing evidence that defendant Kelly Harmon entered a Gelson’s
Market, placed several items in his pockets, and after watching a video of
defendant inside Gelson’s, a jury convicted him of second degree burglary. Jurors
acquitted defendant of robbery based on an altercation with a Gelson’s security
guard. On appeal, defendant’s counsel filed a brief pursuant to People v. Wende
(1979) 25 Cal.3d 436 stating that no arguable issue exists. We have independently
reviewed the record including the denial of discovery following defendant’s
Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).)
We affirm the judgment.
                          FACTS AND PROCEDURE
      Defendant was charged with second degree commercial burglary (Pen.
Code, § 459) and second degree robbery (§ 211). Defendant pled not guilty.
      Defendant sought discovery pursuant to Pitchess, supra, 11 Cal.3d 531 and
the court held an in camera hearing. Following the in camera hearing, the court
concluded there was no discoverable evidence.
      Evidence at trial showed that on April 11, 2012, about 3:00 p.m., defendant
entered a Gelson’s grocery store and walked to the beverage aisle and then the
liquor aisle. Defendant’s actions were videotaped. Defendant picked up an
energy drink. Defendant also picked up a bottle of vodka and a bottle of
champagne. Defendant concealed the energy drink in his left jacket pocket, the
vodka bottle in his back pocket, and the champagne in his right jacket pocket.
Defendant exited the store without paying for the energy drink, vodka, or
champagne.
      Defendant was stopped by a security guard employed by Gelson’s.
Defendant struggled with the guard. Two other security guards assisted in
apprehending defendant. The security guards handcuffed defendant. About one
minute later, police officers arrived. One police officer who responded to the
scene recovered various bottles of alcohol stashed in defendant’s jacket and pants.



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       No witnesses testified for the defense. Defense counsel argued that no
robbery occurred. Counsel argued “I’m not asking you to decide whether or not
Mr. Harmon should have taken the alcohol, whether he should have gone into the
store without paying for the items. We’re here simply with regard to this issue of
force. . . .” Counsel asked the jury to return a verdict of not guilty on the robbery
charge.
       Defendant was found guilty of second degree burglary and not guilty of
second degree robbery.
       Defendant was sentenced to county jail for two years. The trial court
corrected the abstract of judgment to indicate that the crime was committed in
2012. Defendant timely appealed.
                                   DISCUSSION
       The court appointed counsel to represent defendant. Counsel filed a brief
pursuant to People v. Wende, supra, 25 Cal.3d 436 identifying no issues but
requesting the court independently review the record for errors in connection with
the in camera Pitchess hearing. (Pitchess, supra, 11 Cal.3d 531.) Defendant did
not file a supplemental brief. We have reviewed the entire record and find no
arguable issue on appeal and are satisfied that defendant’s attorney has fully
complied with the responsibilities of counsel. (Smith v. Robbins (2000) 528 U.S.
259, 278; see also People v. Kelly (2006) 40 Cal.4th 106, 111; People v. Wende,
supra, at p. 441.) We separately discuss defendant’s Pitchess motion below.
       The standards for evaluating a Pitchess motion are well established. “[O]n
a showing of good cause, a criminal defendant is entitled to discovery of relevant
documents or information in the confidential personnel records of a peace officer
accused of misconduct against the defendant. [Citation.] Good cause for
discovery exists when the defendant shows both ‘“materiality” to the subject
matter of the pending litigation and a “reasonable belief” that the agency has the
type of information sought.’ [Citation.] . . . [Citation.] If the defendant
establishes good cause, the court must review the requested records in camera to

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determine what information, if any, should be disclosed. [Citation.] Subject to
certain statutory exceptions and limitations [citation], ‘the trial court should then
disclose to the defendant “such information [that] is relevant to the subject matter
involved in the pending litigation.”’ [Citations.]” (People v. Gaines (2009) 46
Cal.4th 172, 179.) When a court improperly fails to find good cause and therefore
fails to review documents in camera, the case must be conditionally remanded for
the trial court to review the requested documents and issue a discovery order if
warranted. (Id. at pp. 180-181.)
         Here, defendant’s showing of good cause was questionable because private
security guards not police officers observed defendant remove items from the
shelves in Gelson’s Market, and private security guards apprehended defendant.
Defendant did not demonstrate a plausible scenario of officer misconduct that
might have occurred. (See Warrick v. Superior Court (2005) 35 Cal.4th 1011,
1024.)
         Nevertheless, assuming defendant showed good cause, the trial court
reviewed the files of the officer who arrived at the scene and took defendant into
custody and the officer who interviewed defendant once he was in custody. The
record suggests that there was one complaint against the arresting officer relevant
to defendant’s request for documents concerning alleged dishonesty. However, a
conditional reversal is not warranted because defendant cannot demonstrate
prejudice. (See People v. Memro (1985) 38 Cal.3d 658, 684 [defendant required
to show prejudice], overruled on another ground in People v. Gaines, supra, 46
Cal.4th at p. 181, fn. 2.)
         Defendant basically conceded the burglary. He argued only that he did not
commit a robbery. Moreover evidence of the officers’ personnel records would
not assist in impeaching the security guards, who were the only percipient
witnesses. Nor would evidence of the officers’ personnel files have led to relevant
evidence on a disputed issue. In short, the outcome of the case would not have
been different if the court had disclosed the above-referenced complaint to the

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defense. (See People v. Samuels (2005) 36 Cal.4th 96, 110 [finding assumed error
in denying Pitchess motion harmless “in light of the extensive evidence linking
defendant” to crimes].)
                                  DISPOSITION
      The judgment is affirmed.




                                                FLIER, J.
WE CONCUR:




      BIGELOW, P. J.




      GRIMES, J.




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