Filed 5/15/13 P. v. Garcia CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B237920

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. BA261764)
         v.

ALEXIS GARCIA,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County. Robert J.
Perry, Judge. Affirmed.
         Corona & Peabody and Jennifer Peabody for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant General,
Lance E. Winters, Assistant Attorney General, Eric E. Reynolds and Ana R. Duarte,
Deputy Attorneys General, for Plaintiff and Respondent.




                               ___________________________________
        Defendant Alexis Garcia was retried for the murder of Ricardo Castro (Pen. Code,
§ 187, subd. (a))1 after the jury in his first trial deadlocked by a vote of six to six. During
his second trial, the jury found defendant guilty of murder during the commission of
which he personally and intentionally discharged a firearm, causing great bodily injury
and/or death (id., § 12022.53, subd. (d)). The jury further found that he committed the
murder for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)). The trial
court sentenced defendant to state prison for a total term of 50 years to life.
        Defendant appealed, contending among other things that he was denied access to
important exculpatory evidence when the trial court denied his Pitchess2 and Brady3
motions, and the evidence was insufficient to establish his guilt beyond a reasonable
doubt because there were numerous inconsistencies between the principal eyewitnesses’
trial testimony, preliminary hearing testimony and pretrial statements. We concluded the
jury was entitled to credit the eyewitnesses’ identification of defendant as the shooter
despite the inconsistencies in their statements but the trial court erred in denying his
Pitchess motion. We therefore reversed the judgment and remanded the matter to the
trial court for the limited purpose of conducting an in camera inspection of police
personnel records and, if the files contained discoverable information, affording
defendant an opportunity to establish that he was prejudiced by the denial of his motion.
(People v. Garcia (Sept. 15, 2008, B197695) [nonpub. opn.].)
        On remand, the trial court examined the police records in camera, concluded
several complaints found therein against one of the investigating detectives were
discoverable, and disclosed the information to defendant. Defendant then moved for new
trial based on the newly discovered evidence, contending the complaints against the
detective could have been used at trial to impeach his testimony and cast doubt on



 1   Undesignated statutory references will be to the Penal Code.
 2   Pitchess v. Superior Court (1974) 11 Cal.3d 531.
 3   Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.E.2d 215].

                                               2
identifications made by the two eyewitnesses, which would have resulted in a different
verdict. The trial court denied the motion and reinstated the judgment.
       We conclude the trial court properly denied defendant’s motion for new trial, and
therefore affirm.
                                     BACKGROUND
       We draw the operative facts from our prior opinion. (People v. Garcia, supra,
B197695.) On the evening of March 5, 2004, Julieta Flores and her friend Maria
Figueroa met Ricardo Castro, also known as Solo, at Main and Vernon Streets in Los
Angeles. The group then proceeded to a liquor store at Wall and Vernon. A green
Chevrolet Suburban was parked in front of the store. As she approached the store, Flores
saw a man, later identified as Jose Rodriguez, walking out of the liquor store with a case
of beer. Figueroa asked the man if she could have a beer; he said no. A second man,
whom Flores identified as defendant, then exited the liquor store behind the man with the
beer. Defendant, whose “whole face” Flores could see, appeared surprised to see Castro
and “went straight to [Castro’s] face.” The two men appeared to be talking, but Flores
could not understand what was being said. The confrontation between defendant and
Castro lasted 15 seconds, after which defendant pulled a gun from his waistband and shot
Castro.
       Flores heard four shots. After the last shot, Castro grabbed his chest and walked
into the store. Flores went outside to call for an ambulance and saw the green Suburban
driving away. Castro was taken to the hospital, where he died from his injuries.
Unbeknownst to Flores, Castro was a member of the Playboys gang. During a car wash
held in his honor days after the shooting, Flores saw a picture of him in which his gang
tattoos were visible.
       Flores spoke with police after the shooting. She described the shooter as a 20- or
21-year-old Hispanic man, 5 feet 8 inches to 5 feet 10 inches tall, weighing 160 to 170
pounds and wearing a blue sweater with hood and dark jeans. Flores described the man
carrying the beer as having a mustache, goatee and a “chunky” build. He was wearing a
baseball hat with a white T-shirt.

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       Three days after the shooting, on March 8, 2004, Los Angeles Police Detective
Richard Arciniega interviewed Flores at her home. Flores described the shooter this time
as a Hispanic male, 5 feet 8 inches or 5 feet 9 inches tall, with a medium build and a light
complexion. His gun was a semi-automatic handgun. Flores also described the man
carrying the beer as Hispanic, 5 feet 7 inches to 5 feet 8 inches tall, with a “chunky”
build, light complexion, a mustache and goatee. Flores did not mention seeing a green
Suburban leaving the scene.
       According to Flores, she described the shooter to Detective Arciniega as a
Hispanic man, 5 feet 8 inches to 5 feet 10 inches tall, with a light complexion and
medium build. She estimated the shooter’s age at 20 or 21 years, his weight as 160 to
170 pounds, and described his gun as black. Flores described the man carrying the beer
as having a “chunky” build, a light complexion, a mustache and goatee. He was 5 feet 7
or 8 inches tall and wore a baseball cap and a white shirt.
       Also on March 8, 2004, Detective Arciniega went to Figueroa’s home and
discussed the incident with her. Figueroa stated she had spoken to the man carrying the
beer. It was the other man who confronted Castro. Figueroa mentioned that she had been
at a car wash the previous day and heard people say that members of 41st Street gang
were responsible for the shooting. Based on what Figueroa overheard at the car wash,
Detective Arciniega arranged for an array of photographs of members of the 41st Street
gang to be compiled.
       Detectives also interviewed Eduardo Cabrera, who was working in the liquor store
on the night Castro was shot. According to Cabrera, the people who bought beer were
41st Street gang members and had been in the store previously. Cabrera viewed a
photographic array comprised of 16 pictures and identified the man in photograph 1 as
the person who purchased the beer and the man in photograph 16 as the person who




                                             4
accompanied the man with the beer. Cabrera also stated that the individual in photograph
16 had been wearing a hood and a sweatshirt.4
       The next day, March 9, 2004, Figueroa was interviewed further at the police
station. After viewing the photograph array, Figueroa identified the man in photograph 1
as the man who purchased the beer and defendant, who was depicted in photograph 16, as
the man who argued with Castro. Figueroa reviewed her statement and signed it.
       Rodriguez was the man in photograph 1. According to Detective Arciniega,
Rodriguez was about 5 feet 6 inches tall and had a “stocky, chunky” build. At the time of
the shooting, Rodriguez was 24 or 25 years old.
       Also on March 9, Flores was brought to the police station and interviewed. She
too selected the man in photograph 1 as the one who bought beer and identified
defendant, pictured in photograph 16, as the man who shot Castro. Flores also reviewed
her statement and signed it. At trial, both Figueroa and Flores identified defendant as the
man who shot Castro.
       In an interview held on March 9, Cabrera again identified the person in
photograph 1 as the man who purchased the beer. With regard to the man in photograph
16, Cabrera said he had been “wearing a hood and sweatshirt and was with the guy who
bought beer.” Cabrera described Castro as a regular customer and a young gang member.
Cabrera had seen defendant and Rodriguez together in the past.
       According to Los Angeles Police Officer Jose Calzadillas, a gang expert, the 41st
Street gang and the Playboys gang were rivals with “a lot of bad blood” between them.
Officer Calzadillas opined that the shooting was committed for the benefit of the 41st
Street gang. The liquor store at which the shooting occurred was “right on the border”
between Playboys and 41st Street territory, and each gang considered the liquor store to
be part of its territory. Defendant is an admitted member of the 41st Street gang and




 4 At trial, Cabrera believed that defendant had been in the store on the night of the
shooting, but he was not 100 percent sure.

                                             5
displays 41st Street gang tattoos. The presence of a rival gang member in gang territory
would be considered a challenge to the gang.
       Officer Calzadillas viewed the photographic array shown to the witnesses. The
officer recognized Rodriguez, the man depicted in photograph 1, as “Thumper.” This
individual had several large tattoos signifying his membership in the 41st Street gang.
       Defendant was arrested on June 24, 2005. At the time, he was in possession of
glasses but was not wearing them. Defendant also was in possession of an identification
card and check-cashing card, bearing his picture, but issued in the name of Antonio
Alvarez. In neither picture was defendant wearing glasses. Arresting Officer Todd
Bracht, who was familiar with defendant as a result of prior contacts, observed that
defendant was 20 or 30 pounds heavier than he had been in the past.
       At trial, Marta Martinez, defendant’s mother, testified defendant has worn glasses
since 1994 or 1995. Defendant’s supervisor testified that defendant always wore glasses
at work. No eyewitness had described defendant as wearing glasses.
       Prior to his retrial, defendant filed a Pitchess motion, seeking to examine the
personnel records of Detective Arciniega for accusations of misconduct, arguing the
eyewitnesses identifications in the first trial had been “tainted by collusion with other
witnesses and by Police suggestion and intimidation.” Defendant further argued there
was “evidence that officers had manipulated witness statements and withheld evidence
from the defense.” The trial court denied the motion, but we reversed, concluding
defendant had made a sufficient showing of good cause to warrant the trial court’s in
camera review of Detective Arciniega’s police personnel records. We remanded with
directions for the trial court to conduct an in camera hearing and disclose to defendant
any discoverable information. We also instructed the trial court to afford defendant an
opportunity to establish that he was prejudiced by any denial of discoverable information
and, if he succeeded in doing so, order a new trial.
       The court reviewed Detective Arciniega’s personnel records on January 9, 2009.
It found eight pertinent complaints had been made against him between 1997 and 2006
for filing false police reports, giving false testimony, tampering with photographic

                                              6
identification lineups, and coercing confessions. Of particular note was a complaint by
the wife of one Marcelos Moore, who alleged that in 1997 Arciniega showed several
mug books to witnesses to a home invasion robbery. The witnesses identified an
individual other than Moore as the perpetrator, but Arciniega failed to include those
identifications in his police reports. Moore had raised the issue at trial and cross-
examined Arciniega about the mug photos, but was nevertheless convicted of robbery
and sentenced to eight years in prison.
       On January 9, 2009, the trial court ordered the Los Angeles Police Department’s
custodian of records to disclose to defendant the eight pertinent complaints and the
contact information of the complainants. On February 2009, the department produced the
information as ordered.
       A year and a half later, On July 30, 2010, defendant’s counsel filed a motion for
new trial. Counsel argued that in several cases Detective Arciniega was alleged to have
fabricated false police reports, given false testimony, and withheld exculpatory portions
of witness interviews. For example, in one instance documented in an internal report
created by the Los Angeles Police Department, Arciniega, “[a]ccording [to] the
witnesses,” fabricated a false confession. In another instance, which resulted in a civil
lawsuit, Arciniega “allegedly used excessive force against [a suspect] and then
participated in a cover-up.” Defendant’s counsel also cited a criminal trial where the
defendant’s counsel alleged Arciniega engaged in “‘“psychological intimidation”’” of the
defendant. In “another serious” but otherwise unidentified criminal case, defendant’s
counsel argued Arciniega maintained selective recordings of interviews and lied to the
defendant. Finally, defendant’s counsel argued Arciniega gave false testimony in two
more criminal cases. “Beyond the above,” counsel argued, “there are complaints of
police misconduct of dishonesty by Detective Arciniega [by] several other witnesses,” all
of whom counsel intended to call at the September hearing on the motion for new trial.
Defendant argued he was prejudiced in the second trial because the court’s denial of his
Pitchess motion rendered him unable to call these witnesses to impeach Arciniega’s
testimony and cast doubt on the eyewitness identifications.

                                              7
       In opposition to the motion for new trial, the People argued none of defendant’s
allegations of misconduct by Arciniega was supported by evidence. (§ 1181 [“When a
motion for a new trial is made upon the ground of newly discovered evidence, the
defendant must produce at the hearing, in support thereof, the affidavits of the witnesses
by whom such evidence is expected to be given, . . .”].) Defendant had produced no
evidence of any kind, the People argued, merely allegations.
       On the morning of October 28, 2010, shortly before the hearing on defendant’s
motion for new trial and more than a year and a half after Arciniega’s records were
produced, defendant filed a reply to the People’s opposition and a declaration by Moore
that was dated two days prior. Defendant’s counsel argued that in yet another criminal
case, which counsel identified as “People v. Miguel Chavez #BA263421,” the “defendant
was acquitted after a tape was played while Arciniega was on the stand which directly
contradicted his assertion of a Defendant’s admissions off-tape.”
       In his declaration, Moore stated he had had two negative encounters with
Detective Arciniega in 1997. In the first, Arciniega and other officers physically
assaulted Moore during an arrest and falsely reported that he had shot at them. In the
second, Arciniega showed a robbery victim an array of photographs that contained
Moore’s photo. The victim positively identified Moore as one of the robbers. Moore
admitted he had participated in the robbery but argued the victim never saw his face
because before he entered the victim’s residence, his accomplice had ordered the victim
to lie “down on the ground with his face facing the floor.” It was therefore “impossible”
for the victim to have identified Moore “because he was never in a position to have seen”
him. Furthermore, after Arciniega arrested Moore, he placed a bag of rock cocaine and a
gun in his lap and threatened to charge him with possession of the cocaine and the gun if
Moore did not implicate other accomplices in the robbery. When Moore refused to
implicate anyone, Arciniega removed the items and booked him only on the robbery.
       At the hearing on defendant’s motion for new trial, his counsel argued that his
personal experience with Detective Arciniega, the number of complaints against the
officer, and the weakness in the case against defendant established prejudice.

                                             8
       The trial court disagreed. It found the number of complaints was not dispositive
and defendant offered little admissible evidence of wrongdoing by Detective Arciniega,
and that which was offered failed to establish that defendant would have taken a different
approach at trial or that the jury would have reached a different verdict had the evidence
been obtained earlier. This was so because at trial the defense relied heavily on the
theory that Flores and Figueroa had been coached, and defense counsel ably and
aggressively explored the issue in his cross-examination of the two witnesses and
Arciniega. The court observed that the jury discredited the defense theory, and no
reasonable probability existed that a different result would have been reached had the
jury been aware of Moore’s complaint. It thus denied the motion.
                                      DISCUSSION
       “Evidence Code sections 1043 through 1045 codify Pitchess v. Superior Court[,
supra,] 11 Cal.3d 531. ‘The statutory scheme carefully balances two directly conflicting
interests: the peace officer’s just claim to confidentiality, and the criminal defendant’s
equally compelling interest in all information pertinent to the defense.’ [Citation.] The
legislation achieves this balance primarily through a procedure of in camera review, set
forth in section 1045, subdivision (b), whereby the trial court can determine whether a
police officer’s personnel files contain any material relevant to the defense, with only a
minimal breach in the confidentiality of that file.” (People v. Jackson (1996) 13 Cal.4th
1164, 1220.)
       Here, defendant argued eyewitness identifications in the first trial were tainted by
police suggestion, intimidation, and manipulation, and requested discovery of complaints
of police misconduct, witness manipulation, and withheld evidence. Defendant’s request
was denied, and he was subsequently convicted in a second trial.
       We reversed the judgment of conviction for the limited purpose of affording
defendant an opportunity to demonstrate he was prejudiced by denial of discovery or the
prosecution’s failure to disclose exculpatory material. We instructed the trial court as
follows: “The matter is remanded to the trial court for the limited purpose of
(1) conducting an in camera inspection of Detective Arciniega’s and Detective Villa’s

                                              9
police personnel records and ordering the disclosure of relevant information, if any, and
(2) granting defendant’s Brady request and giving defendant an opportunity to establish
prejudice resulting from the prosecution’s withholding of any potentially exculpatory
evidence. If the trial court concludes that the detectives’ personnel files contain
discoverable Pitchess information and defendant establishes that he was prejudiced by
the denial of its discovery or defendant establishes he was prejudiced as a result of the
prosecutions’ failure to disclose the Brady material, then the trial court is directed to
order a new trial. If there is no discoverable Pitchess information in the detectives’
personnel files or if defendant is unable to establish he was prejudiced at trial as a result
of the improper denial of his Pitchess motion or Brady request, then the trial court is
ordered to reinstate the judgment and the judgment is affirmed.” (People v. Garcia,
supra, B197695.)
       Defendant requests that we independently review the resulting in camera
proceedings below to determine whether the trial court properly exercised its discretion in
ordering or denying discovery. (People v. Mooc (2001) 26 Cal.4th 1216, 1228; People v.
Wycoff (2008) 164 Cal.App.4th 410, 414-415.) We have done so, and find no abuse of
discretion. (People v. Mooc, supra, 26 Cal.4th at p. 1228.) On remand, only complaints
by persons who alleged coercive techniques in identification procedures were relevant to
defendant’s theory that the witness identifications were unreliable. The trial court
nevertheless reviewed all complaints in Detective Arciniega’s personnel file and found
eight that were relevant. Based on our review of the reporter’s sealed transcript of the
proceedings, this was proper.
       The real issue is whether the initial denial of discovery of the eight relevant
complaints in Arciniega’s file prejudiced defendant. We conclude it did not.
       “[A] defendant who has established that the trial court erred in denying Pitchess
discovery must also demonstrate a reasonable probability of a different outcome had the
evidence been disclosed.” (People v. Gaines (2009) 46 Cal.4th 172, 182.) One possible
different outcome would be a hung jury. (People v. Soojian (2010) 190 Cal.App.4th 491,
521.) To assess whether a different outcome was reasonably probable the court must

                                              10
“‘“consider the non-disclosure dynamically, taking into account the range of predictable
impacts on trial strategy.”’ [Citation.]” (People v. Gaines, at p. 184.) “[W]e must find
both (1) a reasonable possibility defense counsel would have presented the mitigating
evidence had he received the discovery he requested (otherwise the error would not have
affected the trial at all), and (2) a reasonable possibility the verdict would have been
different had defendant presented the mitigating evidence.” (People v. Gonzalez (2006)
38 Cal.4th 932, 961.)
       Here, defendant’s counsel was armed with some dozen complaints and possible
complaints against Arciniega, eight from the Pitchess proceedings and several more from
counsel’s own experience or knowledge. Yet after approximately a year and a half
counsel was able to generate only one piece of evidence: the declaration of Moore, an
admitted robber, to the effect that a photographic identification of him in 1997—an
accurate identification—must have been fabricated because during the robbery in
question the victim was “down on the ground with his face facing the floor,” and could
not have seen him.
       We will assume for the sake of argument that it is reasonably possible the defense
would have offered Moore’s testimony at trial had it received Moore’s wife’s complaint
against Detective Arciniega in a timely fashion. This may be a generous assumption, as
it apparently took defense counsel more than a year and a half after the Pitchess hearing
to obtain Moore’s declaration. Even had Moore testified at trial, no reasonable
probability exists that the verdict would have been different.
       The gist of Moore’s evidence would have been that in 1997 Detective Arciniega
caused a witness to falsely identify him, implying Arciniega did the same here with
Flores and Figueroa. Moore’s evidence would have been of negligible weight. His only
expressed reason for thinking the 1997 identification was manipulated was not that he
was innocent but that the witness was face down throughout the subject robbery, and
therefore could not have got a good look at Moore’s face. The weakness and unreliability
of such testimony is patent. In any event, the jury already possessed circumstantial
evidence, albeit weak, that Flores and Figueroa had been coached in their identifications:

                                             11
The identifications evolved over time. The jury also knew about defendant’s theory that
the discrepancies resulted from Arciniega’s coaching. The jury nevertheless believed
Flores and Figueroa accurately identified defendant as the person who shot Castro.
Because Moore’s speculation regarding the genesis of his own admittedly accurate
identification 10 years before the trial in this case would have added little to what the jury
already knew about Flores, Figueroa and Arciniega, we cannot conclude any reasonable
probability exists that it would have made a difference.
       Accordingly, the trial court was well within its discretion to find that defendant
suffered no prejudice as a result of having been denied Pitchess discovery.
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.




                                                                 CHANEY, J.

We concur:



              MALLANO, P. J.



              ROTHSCHILD, J.




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