Filed 7/28/15 P. v. Stevenson 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.



           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F068170
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. MF010467)
                   v.

DOUGLAS J. STEVENSON,                                                                    OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Cory J.
Woodward, Judge.

         Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Douglas J. Stevenson appeals a conviction from his plea of nolo contendere to
battery on a correctional officer. Stevenson contends the trial court improperly denied his
suppression motion. Additionally, he argues the court erred in refusing to view evidence
of his own injury during the incident and refusing to permit cross-examination of the
correctional officer about prior complaints. Stevenson further contends his plea was not
voluntary and seeks appellate review of the correctional officer’s personnel records
pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
       We find merit in Stevenson’s contentions that the trial court improperly limited
Pitchess discovery and presentation of evidence at the suppression hearing. We
conditionally reverse the judgment and remand for further proceedings.
                  FACTUAL AND PROCEDURAL BACKGROUND
Preliminary Hearing and Information
       The preliminary hearing was conducted on April 19, 2013. Correctional Officer
Mark Crotty testified he was working at the California Correctional Institution at
Tehachapi the morning of December 7, 2012. Crotty was assigned to the secure housing
unit (SHU), transporting inmates to the showers. Crotty was transporting Stevenson from
the shower back to his cell. As they crossed in front of cell A section 105, the inmates in
that cell had placed a book for Stevenson to grab. When Stevenson asked Crotty if he
could take the book, Crotty said “no.” As they continued toward his cell, Stevenson
became agitated and “shoulder checked” Crotty with his right shoulder, hitting Crotty’s
left side. This started an altercation.
       Stevenson was in handcuffs with his hands behind his back. Stevenson’s shoulder
checking pushed Crotty off balance. Crotty ordered Stevenson to get down, but
Stevenson refused to comply. Crotty struck Stevenson twice in the upper right thigh with
his baton. Stevenson still refused to comply with the order to get down. Crotty grabbed
Stevenson’s right biceps and took him to the floor.
       Both Crotty and Stevenson fell to the floor on their stomachs. Stevenson rolled
over onto his back and kicked Crotty, striking Crotty on his right hand. As Stevenson
continued kicking, Crotty’s partner, Chris Gonzales, came over. Crotty suffered


                                             2.
“overwhelming” pain in his hand, which began swelling after the incident. Stevenson did
not stop kicking until Gonzales administered four more strikes with his baton and other
prison staff arrived. Because of their positions relative to each other, Crotty did not
believe it was possible he had hit Stevenson’s left thigh.
       Crotty showed his hand to his supervisor, Sergeant Foster, and was sent first to the
prison infirmary and then to the hospital. Crotty described the swelling as causing his
hand to look like a watermelon and the pain he suffered as “unreal.” Crotty could not
bend his fingers; he wore a hand splint for over two months.
       Crotty had prior contact with Stevenson because he was assigned to the building
Crotty worked. Crotty had not used force on Stevenson prior to this incident. Stevenson
had been sprayed with pepper spray by another officer the month before. Crotty had been
present as another escorting officer, but he did not administer the pepper spray.
       Crotty did not write his report of the incident. The report was written by a
sergeant who questioned Crotty by telephone while Crotty was at the hospital. Having
reviewed the report, Crotty did not think there was anything that needed to be added,
changed, or deleted.
       On cross-examination, Crotty explained he hit Stevenson’s right thigh with the
baton, holding it in his right hand. Stevenson was standing in front of Crotty and they
were both facing the same direction when the altercation began.
       On April 23, 2013, an information was filed alleging Stevenson committed battery
on Mark Crotty, a correctional officer (Pen. Code,1 § 4501.5), and caused great bodily
injury in doing so (§ 12022.7, subd. (a)). It was further alleged Stevenson had a prior
serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (c)–
(j), 1170.12, subds. (a)–(e).) The information also alleged Stevenson was eligible for a
prior prison term enhancement (§ 667.5, subd. (b)).



       1Unless   otherwise designated, further statutory references are to the Penal Code.


                                                 3.
Defendant’s Pitchess Motion
       On June 3, 2013, Stevenson’s counsel filed a Pitchess motion for discovery of
information in Crotty’s files seeking, among other things, past incidents of excessive or
unnecessary force, failure to appropriately manage anger, instances of retaliation or racial
prejudice, evidence of filing an improper worker’s compensation claim, and dishonesty.
Stevenson’s counsel prepared a declaration on information and belief stating his client
asserted he never battered Crotty and all assertions to the contrary were false.
       Stevenson believed he was the victim of Crotty’s retaliation because Crotty was
fed up with Stevenson’s requests for a spoon that was not broken. While escorting
Stevenson to the showers in an area out of view by other inmates, Crotty pushed
Stevenson against a wall and beat him unnecessarily, excessively, and violently.
Stevenson had previously suffered a gunshot wound to his left leg. It resulted in scarring
that would be obvious to Crotty at the time because Stevenson was being escorted in
minimal clothing.
       Crotty had previously seen Stevenson’s unusual gait during an interaction on
November 11, 2012, when two other officers pepper sprayed Stevenson and his cellmate,
Mr. Bell. Bell was a member of a Black gang. Because Stevenson volunteered to share a
cell with Bell, Crotty incorrectly suspected Stevenson of also being involved with a Black
gang. Although Crotty did not pepper spray Stevenson during this incident, he offered
his can of pepper spray to the other officers. Crotty was part of a team of officers who
approached Stevenson and challenged Stevenson to assault them, but Stevenson refused.
Stevenson is Black and Crotty is White.
       Stevenson maintained Crotty had developed a history with him, and when
Stevenson asked for an unbroken spoon, Crotty attacked him and then lied about it in his
offense report and to his physician. Despite one hospital’s conclusion there was no
evidence Crotty suffered a fracture, dislocation, or subluxation, Crotty continued for
months with time off from work collecting disability and pursuing a contrived worker’s


                                             4.
compensation claim. Stevenson was housed in a cell nearby Crotty and Sergeant Foster
and overheard Foster indicating his frustration with Crotty because of the prior pepper
spray incident.
       Foster asked Crotty what he could charge Stevenson with and Crotty replied he
did not “‘give a fuck; charge him with something.’” Crotty then punched a nearby
locker, injuring his right hand. Crotty had sought medical treatment for his right fourth
metacarpal, or ring finger, and Foster noted Crotty injured his right index finger. On
July 11, 2013, the trial court granted Stevenson’s Pitchess motion and conducted an in
camera review of Crotty’s personnel file.
In Camera Review of Crotty’s Personnel File
       The trial court found there was no discoverable information in Crotty’s personnel
file. After conducting our own review of the file, we conclude that though the
information is limited, Stevenson is entitled to information related to an allegation in
2006. Stevenson is further entitled to discovery of an event that occurred on
September 7, 2009, and resulted in a subsequent investigation into that event, which
concluded in October 2009.
Suppression Motion
       On June 11, 2013, Stevenson’s counsel filed a motion to suppress evidence
pursuant to section 1538.5. Stevenson specifically alleged he did not try to move away
from Crotty until after Crotty began to apply his baton on Stevenson and his detention
and arrest were, therefore, illegal. The suppression hearing was conducted on August 12
and 13, 2013. Crotty was the only witness.
       Crotty testified he had been a correctional officer for 10 years and was assigned as
a search and escort officer at the California Correctional Institution at Tehachapi on
December 7, 2012. Crotty was working in the SHU. Prior to taking inmates to the
shower, Crotty goes to a cell, cuffs the inmate, and brings him to the showers where the
inmate is allotted 10 minutes to shower. Crotty then retrieves the inmate and brings him


                                             5.
back to his cell. Crotty followed this procedure with Stevenson just before 6:40 a.m.
Crotty retrieved Stevenson from the shower, cuffing him at the cuff port at the shower,
opening the controlled door by lifting his hand, and exiting. Stevenson’s hands were
handcuffed.
       Crotty escorted Stevenson alone, holding Stevenson by his right biceps. As they
passed cell 105, two inmates told Stevenson to retrieve a book on the floor. Stevenson
asked if he could retrieve it and Crotty told him no. As the escort continued, Stevenson
became agitated, his muscles began to tense, and he was grunting. Stevenson lunged and
used his right shoulder to hit and push off Crotty.
       Crotty lost his balance. Crotty lost his grip on Stevenson’s shoulder when he
stepped away. Crotty backed off one step from Stevenson and told Stevenson to get
down. Stevenson was standing as if he was going to head out toward the stairs. When
Stevenson failed to respond to the command, Crotty took one swing to Stevenson’s upper
right thigh with his baton and ordered Stevenson to the floor again. Crotty struck
Stevenson a second time on the upper right thigh when he again failed to get down.
       Stevenson continued to turn himself to the point of facing Crotty. Crotty grabbed
Stevenson’s biceps and they both fell to the floor face first, side-by-side of each other.
When Crotty pushed off, Stevenson was flipping over to his right toward Crotty and he
started bicycling with his legs and struck Crotty in the hand.
       On cross-examination, Crotty elaborated that he broke his fall with his right hand,
the hand in which he was holding his baton. Crotty landed on the hand and weighs 210
pounds, but felt no pain in his hand. Crotty stated he felt no pain in his hand until after
Stevenson kicked it with his bicycle kicks. Crotty was still holding his baton when he got
back up on his feet. Crotty did not strike Stevenson while Stevenson was on his back.
Crotty’s partner, Officer Gonzales, arrived while Stevenson was still on the floor doing
his bicycle kicks. Gonzales was in front of Crotty, partially blocking his view. Crotty




                                              6.
could see Gonzales strike Stevenson four times with his baton, but could not see if
Gonzales struck Stevenson’s left or right leg or the exact location of Gonzales’s blows.
       Crotty testified he had never been disciplined for using excessive force and had
not been counseled for use of excessive force. When Crotty was asked whether he had
been given notice of adverse action or was the subject of “602 complaints,”2 the trial
court sustained the prosecutor’s objections to these questions as having been asked and
answered, even though they were different questions than whether he had been
disciplined for using excessive force.
       On November 11, 2012, Crotty had conducted an unclothed body search of
Stevenson. He was not looking for injuries or scars and did not notice a gross
disfigurement on Stevenson’s upper left leg. The court twice denied Stevenson’s motion
to actually view Stevenson’s upper thigh, which Stevenson’s counsel argued that Crotty
hit because Stevenson had a prior serious injury to that leg and Crotty abusively took
advantage of the injury. Crotty stated he was unaware of large injuries on Stevenson’s
upper left thigh. The court granted a defense motion to admit into evidence a grainy
black-and-white photograph depicting Stevenson wearing boxer shorts the day of the
incident.
       The trial court acknowledged Stevenson was raising an issue of credibility on the
issue of actually viewing Stevenson’s leg, but found Stevenson’s counsel was essentially
asking it to conclude Crotty’s testimony was so unbelievable that any application of force
by Crotty was unwarranted. Defense counsel explained the court did not have to make
“that much of a jump,” but the evidence of a prior injury on Stevenson’s leg would shed
light on Crotty’s credibility.
       Stevenson’s counsel argued that even if his client bumped Crotty with his
shoulder, the amount of force used by Stevenson was very small and Crotty’s response

       2A    Department of Corrections and Rehabilitation Form 602 is used by an inmate to
initiate the administrative appeal process. (Cal. Code Regs., tit. 15, § 3084.2.)


                                               7.
was disproportionate to the situation. Counsel argued the amount of force employed on
his client was so great that Stevenson’s arrest constituted an illegal seizure and should be
suppressed. The trial court denied Stevenson’s suppression motion.
Faretta and Change of Plea Hearings
       After conducting a hearing on August 19, 2013, the trial court granted Stevenson’s
motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806.
       On August 20, 2013, Stevenson complained to the trial court that everything was
against him. Stevenson told the court he had to go back to the same prison, he had to
face the same people there, his television was cracked when he went back to the prison,
and only guards can get hurt, not inmates. The court asked Stevenson if he wanted to
enter a plea. Stevenson replied affirmatively. The court again asked Stevenson if he
wanted to go to trial, but Stevenson said he would just plead no contest. When asked by
the court why he wanted to enter a plea, Stevenson replied he was doing it for protection
in the facility and he was hoping that doing so would be in his best interests.
       Stevenson told the court he believed he would be subject to a physical assault
again if he did not enter a plea because he was not in the general prison population and
had to be handcuffed everywhere he went. Stevenson conceded no one was forcing him
to enter a plea and no one was twisting his hand. Stevenson was not under the influence
of alcohol. When the trial court pointed out he could go to trial and never be subject to
an assault by a peace officer, Stevenson acknowledged this but said he wanted to plead
no contest and had full confidence in the court being fair to him. The prosecutor told the
court Stevenson had approached her a few minutes earlier and she indicated to him a plea
bargain offer remained open until the trial started. The court gave Stevenson time to
review the felony advisement of rights, waiver, and plea form.
       Under the terms of the plea agreement, Stevenson would plead no contest to a
violation of section 4501.5 and admit a prior serious felony conviction. In exchange for
his plea, Stevenson would receive a stipulated sentence of two years, doubled pursuant to


                                             8.
the three strikes law, and the remaining allegations would be dismissed. Stevenson
executed and initialed the felony advisement of rights, waiver, and plea form setting forth
the terms of the plea agreement. The form also advised Stevenson of the consequences of
his plea and explained Stevenson’s constitutional rights pursuant to Boykin v. Alabama
(1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.
       The court verified Stevenson initialed and signed the plea form and understood the
rights he was waiving, especially the right to a trial. The court determined Stevenson
understood he would have to serve 85 percent of the four years he would be serving and
wanted to waive his right to a trial. Stevenson pled no contest to a violation of section
4501.5 and admitted a prior serious felony conviction within the meaning of the three
strikes law.
       The sentencing hearing was on September 19, 2013. Stevenson complained he did
not have the opportunity to subpoena witnesses who were in other prisons, and prison
authorities had brought the wrong witnesses to court just before he entered his plea. The
prosecutor confirmed that prior to the court granting Stevenson’s motion to represent
himself, his trial attorney told the prosecutor the wrong witnesses had been brought to the
court. Stevenson told the court his original release date was set for December 14, 2013.
Stevenson asked the court why he would try to retrieve a book and provoke an incident
with Crotty so close to his release date. The court noted Stevenson could not have it both
ways. He could not say the allegations were unfair because the incident never happened
and then enter a plea when he had the opportunity for a trial.
       The trial court sentenced Stevenson according to the terms of the plea agreement:
a prison term of two years, doubled pursuant to the three strikes law to four years.
Stevenson filed a timely notice of appeal and obtained a certificate of probable cause
from the trial court.




                                             9.
Pending Motions on Appeal
       Stevenson’s appellate counsel has filed two motions in the instant appeal in which
this court deferred ruling pending consideration of the appeal on its merits. On April 10,
2014, this court deferred ruling on Stevenson’s request to expand his appellate counsel’s
appointment to include the pursuit of a petition for habeas corpus to have Stevenson’s
polygraph taken and to investigate lawsuits filed in federal district court against Crotty
alleging Crotty violated the civil rights of the inmates at Tehachapi who filed the
lawsuits. Stevenson’s counsel further seeks to investigate an allegation by Stevenson’s
former counsel that Crotty called trial counsel an expletive. On April 10, 2014, and on
June 25, 2014, this court deferred ruling on requests for judicial notice of two civil rights
actions filed against Crotty in federal district court alleging he used excessive force on
the inmates and a federal bankruptcy petition filed by Crotty that refers to the lawsuits.
                                       DISCUSSION
1.     Discovery and Evidentiary Issues
       Stevenson raises multiple issues on appeal related to discovery. He challenges the
trial court’s rulings denying his request to have the trial court view the scarring injury to
his left leg and preventing defense counsel from asking Crotty about prior allegations of
using excessive force. Stevenson also requests this court review the relevant materials
produced for the Pitchess motion he filed. As a preliminary matter, we note Stevenson
has obtained a certificate of probable cause and can, therefore, raise issues that go behind
his plea. (People v. Panizzon (1996) 13 Cal.4th 68.) Also, Stevenson can challenge
alleged errors in the suppression motion without a certificate of probable cause. (Ibid.;
§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1096.) As we explain, there is merit
to Stevenson’s assertion the trial court erred at the suppression hearing in preventing
Stevenson’s counsel from questioning Crotty concerning matters constituting admissible
and relevant evidence.




                                             10.
Excluded Evidence
       The suppression motion filed by Stevenson’s counsel alleged Stevenson was
illegally arrested because Crotty used excessive force far outside the force necessary to
control him even if he did bump Crotty’s shoulder with his own shoulder. The United
States Supreme Court has recognized that whether the seizure of a person is reasonable
under the Fourth Amendment can include an evaluation of whether the force employed in
the seizure or arrest was reasonable. Courts employ an objective standard in determining
whether excessive force was employed by the officer. (Graham v. Connor (1989) 490
U.S. 386, 395-397.)
       Stevenson further contended Crotty’s version of events was untrue and Crotty took
him out of view and intentionally hit him in the left leg. Stevenson argued he still
suffered pain in that leg from a former gunshot wound that caused significant scarring
and the wound was obvious to anyone who viewed his leg. To corroborate his version of
events, Stevenson sought to have the court view his leg. Stevenson’s counsel further
sought to question Crotty concerning past allegations by other inmates that he had so-
called 602 complaints from other inmates, adverse action, had to engage in special
training after applying excessive force, or complaints from private citizens for the use of
excessive force. The trial court sustained objections by the prosecutor to these questions
on the ground the questions had been asked and answered.
       The questions Stevenson’s counsel attempted to ask concerning complaints by
other inmates or from private citizens for the use of excessive force were not answered by
Crotty’s previous testimony that he had not been disciplined by prison authorities for
using excessive force. The additional questions are related to, but different from, whether
Crotty had been disciplined for prior use of excessive force. If Crotty engaged in prior
acts of excessive force, whether or not he was disciplined for them, this was relevant to
Crotty’s motive, intent, knowledge, or absence of mistake or accident concerning his
encounter with Stevenson. (Evid. Code, § 1101, subd. (b).)


                                            11.
        Although the character of a witness may not be attacked by specific evidence of
wrongful acts, this general rule is not controlling where the inquiry goes beyond character
and involves a basic fact in issue. (Evid. Code, § 1101, subds. (a), (b).) Four prior
episodes of an officer’s misconduct in bullying and assaulting other suspects in custody
during a booking incident are relevant under Evidence Code section 1101, subdivision (b)
and have been held to be relevant to prove both intent and the absence of mistake or
accident. (Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938,
945.)
        Evidence contradicting the testimony of a witness, even if it consists of proof of
other wrongful acts, is proper if it is relevant to an issue presented in a case. (People v.
Clark (1965) 63 Cal.2d 503, 505.) Also, otherwise admissible evidence of habit or
custom is admissible to prove conduct on a specified occasion in conformity with habit or
custom. (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 983.)
        The court also refused to view Stevenson’s scarred left leg. There were grainy
black-and-white photographs available of both Stevenson’s leg and the injuries Crotty
received to his hand. Although the court did not necessarily have to personally examine
Stevenson’s leg, the parties could have arranged for accurate photographs to be taken
depicting the scarring and extent of Stevenson’s prior injury to the leg. As with evidence
concerning past allegations of excessive force by Crotty, the prior injury Stevenson
asserted Crotty exploited during their encounter was a material issue before the trial court
in the suppression hearing. It was error for the trial court to limit defense counsel’s
presentation of these matters during the suppression hearing.
Pitchess Ruling
        The parties agree we need to independently review Officer Crotty’s personnel file
to determine whether there is information relevant to past allegations he employed
excessive force or was dishonest. There are two such incidents in Crotty’s file, one from
2006 and one on September 7, 2009 (investigation concluded in October 2009).


                                             12.
       Because Crotty’s veracity lies at the heart of Stevenson’s suppression motion, the
officer’s credibility is at issue. Discovery of such information, as contained in the
incident pertaining to the September 7 and October 2009 dates, is not limited to cases
involving altercations between law enforcement officers and arrestees. (People v. Memro
(1985) 38 Cal.3d 658, 679, overruled on other grounds in People v. Gaines (2009) 46
Cal.4th 172, 181, fn. 2; People v. Hustead (1999) 74 Cal.App.4th 410, 417.) A legitimate
goal of discovery is to obtain information for possible use to impeach or cross-examine
an adverse witness. (Hustead, supra, at p. 417; see People v. Gill (1997) 60 Cal.App.4th
743, 750-751.)
       A defendant who has established error in denying Pitchess discovery must also
demonstrate a reasonable probability of a different outcome had the evidence been
disclosed. (People v. Gaines, supra, 46 Cal.4th at pp. 182-183.) In the instant action,
however, we cannot easily evaluate the effect of limiting the discovery in question on
defendant’s decision to plead no contest rather than to proceed to trial.
       Also, although Evidence Code section 1045, subdivision (b)(1) excludes material
more than five years old, the 2006 incident is still discoverable because the statutory time
limitation is not a bar to disclosure. California’s discovery scheme entitles a defendant to
information that can facilitate the ascertainment of facts at trial, that is, all information
pertinent to the accused’s defense. (City of Los Angeles v. Superior Court (Brandon)
(2002) 29 Cal.4th 1, 13-17.) Pertinent information may include discovery of peace
officer records related to events that occurred after the original conviction where, as in
this case, “a defendant obtains a new trial by way of appellate or habeas relief ….”
(Blumberg v. Superior Court (2011) 197 Cal.App.4th 1245, 1247.)
       The trial court should have disclosed the available information to defense counsel.
Evaluating Prejudice
       The People contend our evaluation of prejudice to defendant of the trial court’s
evidentiary rulings is subject to deferential appellate review pursuant to People v. Watson


                                              13.
(1956) 46 Cal.2d 818, 836. We disagree. The evidentiary errors in the trial court’s
rulings set forth above go to the heart of defendant’s suppression motion and to his ability
to question the officer’s credibility. Another matter we confront is the fact that
Stevenson’s trial counsel, and later Stevenson representing himself, did not have all of
the information available in determining whether to proceed to trial. We cannot evaluate
the impact of the evidentiary rulings on Stevenson’s decision to enter a no contest plea.
The trial court’s limitation of counsel’s questioning of Crotty may well have influenced
Stevenson’s decision to represent himself.
       This problem is compounded by the trial court’s Pitchess ruling limiting discovery
of information that was discoverable by defense counsel. Finally, it is disturbing that
Stevenson told the court at sentencing that inmates his counsel had subpoenaed did not
show up for a hearing because prison authorities sent the wrong inmates. The prosecutor
corroborated Stevenson on this point, explaining to the court that defense counsel
informed her the wrong inmates had been sent by the prison to the hearing.
       The cumulative effect of these errors undermines our confidence that the trial
court had all the relevant evidence before it when it denied the suppression motion. As
also noted, the cumulative effect of these errors makes it very difficult to evaluate
whether Stevenson would have chosen to represent himself or to enter a no contest plea
rather than proceed to trial. (See People v. Hill (1998) 17 Cal.4th 800, 844-848; People
v. Hamilton (1963) 60 Cal.2d 105, 137-138, overruled on other grounds in People v.
Morse (1964) 60 Cal.2d 631, 648-649, disapproved on other grounds in People v. Daniels
(1991) 52 Cal.3d 815, 864-866.)
       Under the circumstances of this case, Stevenson’s due process rights have been
affected. Not only were Stevenson’s discovery rights affected, but his constitutional
rights of cross-examination, to confront witnesses, and to subpoena witnesses for his
defense were improperly limited. We therefore measure the prejudice pursuant to the
standard set forth in Chapman v. California (1967) 386 U.S. 18. Under the Chapman


                                             14.
standard, we cannot say beyond a reasonable doubt the result of these proceedings would
have been the same in absence of the errors.
        There is no way for this court to foresee whether Stevenson’s discovery efforts, or
his attempt to impeach Officer Crotty should he decide to renew his suppression motion,
will substantially change the evaluation of Stevenson’s defense. Under similar
circumstances, this court has employed a conditional remand to permit further Pitchess
discovery, allow the defendant the opportunity to demonstrate prejudice, and order a new
trial if prejudice is demonstrated. (People v. Hustead, supra, 74 Cal.App.4th at pp. 421-
423; see People v. Gill, supra, 60 Cal.App.4th at pp. 750-751.)
        We will remand the case for the trial court to permit discovery of the Pitchess
information noted above and for defendant to evaluate whether he wants to renew his
suppression motion and thereafter withdraw his plea and proceed to trial.
Pending Motions
        Stevenson’s appellate counsel has filed two motions in which rulings were
deferred pending review of the merits of the appeal. In the first, Stevenson’s appellate
counsel seeks expansion of her appointment to include review of habeas corpus issues,
including the preparation of a polygraph of Stevenson. Counsel also seeks to pursue
other evidentiary matters outside the scope of the current record. The second request is
for this court to take judicial notice of claims filed in federal district court that Crotty
allegedly violated the civil rights of two other inmates at Tehachapi and to further
judicially notice a bankruptcy action by Crotty in which these cases are listed as
liabilities.
        We deny the request of Stevenson’s appellate counsel to expand her appointment
to include a habeas corpus petition based on a future polygraph of defendant. Polygraph
evidence is not admissible absent a stipulation by both parties. (Evid. Code, § 351.1;
People v. Samuels (2005) 36 Cal.4th 96, 128.) For a defendant to establish a federal due
process right to overcome the categorical exclusion of polygraph evidence by Evidence


                                              15.
Code section 351.1, the defendant must first establish its scientific reliability and
acceptance in the scientific community pursuant to People v. Kelly (1976) 17 Cal.3d 24
and Frye v. United States (D.C. Cir. 1923) 54 App.D.C. 46 [293 Fed. 1013]. (People v.
Wilkinson (2004) 33 Cal.4th 821, 847-852.) Appellate counsel’s present showing to have
defendant’s polygraph taken does not include any showing of admissibility on Kelly/Frye
grounds and would best be brought to the trial court.
       We also deny appellate counsel’s request to expand her appointment to include
investigation of further evidentiary issues beyond those present in the instant record on
appeal. We deny this request without prejudice to Stevenson pursuing any relevant
evidentiary matters outside the scope of the current record and presenting them to the trial
court on remand. We further deny appellate counsel’s request to take judicial notice of
cases in federal district court without prejudice to the defendant seeking discovery or
judicial notice of any admissible matters by the trial court on remand.
2.     Denial of Suppression Motion
       Stevenson contends the trial court erred in denying his suppression motion
because the force used was excessive as a matter of law. Stevenson argues the trial court
impliedly found the force used by Crotty was excessive and was mistaken concerning the
appropriate remedy. All claims of excessive force are measured under the objective
reasonableness standard and the factors used to apply that standard set forth by the United
States Supreme Court in Graham v. Connor, supra, 490 U.S. at pp. 394-399. The trial
court presiding over a suppression motion has the power to determine the credibility of
witnesses, resolve conflicts in testimony, and draw factual inferences. (People v. Glaser
(1995) 11 Cal.4th 354, 362.) Appellate courts defer to the trial court’s factual findings
when they are supported by substantial evidence, whether express or implied. (People v.
Redd (2010) 48 Cal.4th 691, 719.)
       The trial court clearly stated that from what it had available, it did not find
Crotty’s conduct amounted to an unreasonable amount of force. We disagree with


                                             16.
Stevenson that Crotty’s conduct was, as a matter of law, objectively unreasonable or that
the trial court found the force used was excessive but applied the wrong remedy. We
hold, however, that because the trial court did not permit Stevenson to present all
admissible evidence during the suppression hearing, the court’s evaluation of the
available evidence was incomplete and could have impacted the trial court’s ruling on
whether Crotty applied excessive force. On remand, Stevenson may renew his
suppression motion and is entitled to a new hearing on the motion.
3.     Alleged Involuntary Plea
       Stevenson argues the trial court erred in finding his plea was entered voluntarily.
Stevenson’s appellate counsel has extensively briefed factual contentions largely outside
the record on appeal to prove Stevenson was coerced into entering his plea in order to
survive his incarceration. The factual matters Stevenson raises are not before us and we
have rejected appellate counsel’s request to expand her appointment to pursue a petition
for writ of habeas corpus. We explain in our remand order that after discovery has been
completed, Stevenson can renew his suppression motion and is entitled to a new hearing.
After the trial court rules on the suppression motion, Stevenson can either keep the
current plea bargain and the trial court will reinstate the judgment, or Stevenson can
move the trial court to withdraw his plea and proceed to trial.
                                     DISPOSITION
       The case is conditionally reversed and remanded for the following further
proceedings. The trial court is directed to reappoint counsel for Stevenson to assist him
with further proceedings. The trial court shall conduct a new Pitchess hearing to view
Officer Crotty’s personnel file since 2012, and to permit discovery of the discoverable
portions of the current personnel file as noted herein. The trial court may seek guidance
from the custodian of records in fashioning appropriate protective orders for this
discovery. Stevenson shall be given the opportunity to discover any other relevant and




                                            17.
admissible evidence and to bring motions for the trial court to take judicial notice of any
relevant and admissible matters that this court declined to judicially notice on appeal.
       After discovery has been completed, Stevenson may file a new motion to suppress.
The trial court is directed to permit Stevenson to present any relevant and admissible
evidence found in discovery. During the suppression hearing, Stevenson may cross-
examine Officer Crotty concerning any improperly excluded evidence during the original
suppression hearing as discussed in this opinion. This cross-examination may include
any other questions to elicit relevant and admissible evidence.
       After the trial court rules on Stevenson’s new suppression motion, Stevenson shall
be permitted to withdraw his plea and proceed to trial. If Stevenson elects not to
withdraw his plea for a new trial, the trial court shall reinstate the judgment.

                                                          ___________________________
                                                                              PEÑA, J.
WE CONCUR:


 ________________________________
POOCHIGIAN, Acting P.J.


 ________________________________
DETJEN, J.




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