Filed 6/18/14 P. v. Bueno CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR

THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A132986
v.
JOHN MARK BUENO,                                                     (Solano County
                                                                     Super. Ct. No. FCR270642)
         Defendant and Appellant.



       Good cause lacking, defendant’s petition for rehearing is denied. The opinion
filed herein on May 22, 2014 is ordered modified as follows. On page 7, a footnote is
added, number 3, with all subsequent footnotes being renumbered. The new footnote will
follow the parenthetic citation to (People v. Earp (1999) 20 Cal.4th 826, 893.) and will
read:

        In a petition for rehearing, defendant contends that the waiver rule set forth in
Earp does not apply to evidentiary rulings. In People v. Partida (2005) 37 Cal.4th 428,
435 (Partida), our Supreme Court made an exception to the general rule that a defendant
may not argue on appeal that the trial court should have excluded the evidence for a
reason not asserted at trial. (Partida, supra, 37 Cal.4th at pp. 433–434.) The Partida
court recognized that a defendant’s new constitutional arguments are not forfeited on
appeal if “the new arguments do not invoke facts or legal standards different from those
the trial court itself was asked to apply, but merely assert that the trial court’s act or
omission, insofar as wrong for the reasons actually presented to that court, had the
additional legal consequence of violating the Constitution.” (People v. Boyer (2006) 38
Cal.4th 412, 441, fn. 17.) We need not decide whether defendant’s constitutional
challenges on appeal to the court’s evidentiary ruling invoked new facts or legal
standards not considered in the trial court because we have concluded that any error in
not admitting the impeachment evidence was harmless beyond a reasonable doubt, and
that the court’s admonition to the jury mitigated the court’s comments that defense
counsel intended to mislead the jury. Defendant’s arguments that the court’s ruling
infringed his rights to confront witnesses and to due process fail on the merits.

             This modification does not effect a change in the judgment.



Dated: ___________________               Signed: _______________________
Filed 5/22/14 (unmodified version)
                      NOT TO BE PUBLISHED IN 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

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
          Plaintiff and Respondent,
                                                                     A132986
v.
JOHN MARK BUENO,                                                     (Solano County
                                                                     Super. Ct. No. FCR270642)
          Defendant and Appellant.


          John Mark Bueno appeals from a judgment upon a jury verdict finding him guilty
of assault on a peace officer with a semiautomatic firearm (Pen. Code,1 § 245,
subd. (d)(2)); possession of a firearm by a felon (§ 12021, subd. (a)(1)); possession of a
concealed firearm on the person of a felon (§ 12025, subd. (a)(2)); carrying a loaded
firearm (§ 12031, subd. (a)(1); unlawful possession of ammunition (§ 12316,
subd. (b)(1)); resisting a peace officer (§ 148, subd. (a)(1), and giving false information to
a police officer (§ 148.9, subd. (a)). The jury also found true the allegation that defendant
personally used a firearm within the meaning of section 12022.5, subdivisions (a) and (d)
in the commission of the assault offense; that he was convicted of a prior felony within
the meaning of section 12031, subdivision (a)(2)(A) in connection with the carrying a
loaded firearm offense; and that he personally used a firearm within the meaning of
section 12022, subdivision (a)(1) during the unlawful possession of ammunition count.
Defendant contends that the trial court’s ruling precluding his attempt to impeach Officer

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

                                                             1
Shephard with his preliminary hearing testimony deprived him of a fair trial. He also
argues that the trial court abused its discretion in denying his Pitchess2 motion. We
affirm.
                                            I. FACTS
          At approximately 10:00 a.m. on September 25, 2009, Officer Michael Shephard
was on patrol duty in Suisun. Shephard, Sergeant Stec, and Officer Sousa were preparing
to conduct probation searches and met at the Bonfaire Market to plan their day. While
there, Shephard noticed defendant drive into the parking lot with two passengers and look
toward the officers. Defendant was driving a dark-colored Honda. One of the passengers
went into the market. Defendant got out of the car and circled it while looking back at
the officers. After defendant exited from the parking lot, Shephard followed in his patrol
car.
          Within a mile from the market, Shephard noticed that the speed of defendant’s car
was accelerating. He also saw that the female passenger in the car was not wearing her
seatbelt properly. Shephard continued to follow defendant’s car which was then
travelling beyond the speed limit. Defendant then suddenly pulled over and stopped the
car. Shephard initiated a traffic stop. He approached the driver’s side and informed
defendant that he had stopped him for speeding. Shephard could smell the odor of
marijuana coming from the car.
          Defendant became argumentative and said that he was not speeding. He did not
have a driver’s license and could not provide a driver’s license number. He gave his date
of birth and said his name was Joshua Bueno, but misspelled Joshua. Shephard requested
a DMV check and the radio dispatcher told him there was no match based on the
information provided. Shephard returned to defendant’s car and asked him to step out of
the vehicle. Shephard told defendant he was going to do a patsearch for weapons.
Defendant was again argumentative and tried to flee. Shephard grabbed defendant’s arm
and tried to hold on to him but defendant continued to resist. Officer Sousa, who had


2
    Pitchess v. Superior Court (1974) 11 Cal.3d 531.

                                                 2
responded to the scene, assisted Shephard. They were able to take control of defendant
and directed him to the ground. Shephard handcuffed defendant, placing defendant’s
hands behind his back, and proceeded to patsearch him. Shephard did not find any
weapons on defendant. He placed defendant in the rear of the patrol car. Shephard and
Sousa then conducted patsearches of the two passengers who were in the car.
       Sergeant Stec, who was also on the scene, told Shephard that it looked like
defendant was “slipping his cuffs,” meaning that he had taken his arms under his legs and
brought them back in front of him. Shephard immediately returned to his patrol car to
investigate. He opened the back door of the car and found defendant in a hunched
position. He reached in and grabbed defendant’s right arm and tried to pull him out of
the car. Defendant “very quickly” spun his legs so his feet came out of the door.
Shephard still had a hold on defendant’s arm; defendant’s hands were between his legs.
As defendant got out of the car, he raised his hands, and Shephard saw that defendant had
something in them. He heard a gunshot at about the same time as Stec screamed, “Gun.”
Shephard pushed defendant’s hands down and got behind him. He placed defendant in a
bear hug and directed him to the ground. Stec assisted Shephard in getting defendant on
the ground. The gun slid to the pavement.
                                    II. DISCUSSION
A. Impeachment evidence
       Defendant contends that Shephard gave conflicting testimony both at the
preliminary hearing and at trial and that the trial court prevented him from impeaching
Shephard about whether he grabbed defendant’s hand rather than his arm when he pulled
him out of the car. The trial court found that defense counsel was taking Shephard’s
testimony out of context and that Shephard had not testified that he grabbed defendant’s
hand. Consequently, the court did not allow the impeachment. Defendant argues that the
court’s ruling violated his right to present a defense. We disagree.
       Defendant focuses on the following exchange during the preliminary hearing after
Shephard had testified that he opened the rear passenger door of the patrol vehicle and
grabbed defendant “probably by his right arm.” “[MS. HARRISON (deputy district


                                             3
attorney)]: How did you do that? [¶] [OFFICER SHEPHARD]: I opened the door and
grabbed it. [¶] [MS. HARRISON]: So you reached in with your left arm?
[¶] [OFFICER SHEPHARD]: I reached in, I believe, with my left hand and grabbed his
arm, or maybe my right. [¶] [MS. HARRISON]: And what did you notice when you
grabbed his right arm? [¶] [OFFICER SHEPHARD]: Nothing at first. He was hunched
over like he didn’t want me to see his hands or whatever, something like that, trying to
conceal something, so I grabbed his hand and kind of pulled it out. He kicked his feet out
of the car —” (Italics added.) Shephard proceeded to testify that he had touched
defendant’s right arm with his left hand, that defendant was in a hunched position, and
that his hands were in front of him and he appeared to be concealing something.
       At trial, Shephard testified that when he opened the door of the patrol car to check
on defendant, he was hunched over, and Shephard reached in, grabbed defendant’s arm,
and tried to pull him out of the car. On cross-examination, defense counsel attempted to
impeach Shephard with his preliminary hearing testimony in which he had stated that he
had grabbed defendant’s hand. The following colloquy occurred: “[MS. JOHNSON]:
Okay. So you reached in and you grabbed him and pulled him to the opening of the door,
right? [¶] [OFFICER SHEPHARD]: No. [¶] [MS. JOHNSON]: You did not reach in
and grab him? [¶] [OFFICER SHEPHARD]: I reached in and grabbed him. [¶] [MS.
JOHNSON]: Okay. [¶] [OFFICER SHEPHARD]: But I am not going to just pull him
out because I don’t know what’s in his — I can’t see his hands. [¶] [MS. JOHNSON]:
Okay. Earlier you testified that you reached in and you grabbed his hand, and then you
changed it to arm; do you recall that? [¶] [OFFICER SHEPHARD]: Yes. [¶] [MS.
JOHNSON]: Okay. But you actually did reach in and grab his hand, right? [¶]
[OFFICER SHEPHARD]: No, I didn’t grab his hand. I couldn’t see his hands. [¶] [MS.
JOHNSON]: Do you recall testifying at the prior hearing in May of 2010, that you did
actually reach in and grab his hand? [¶] [OFFICER SHEPHARD]: I don’t recall saying
hand. I think I may have said forearm.” Defense counsel then sought to impeach
Shephard with his preliminary hearing testimony when he testified that he “grabbed
[defendant’s] hand and kind of pulled it out.” The prosecutor objected that defense


                                             4
counsel was misstating the testimony. The trial court agreed, noting that Shephard had
testified that he had grabbed defendant’s right arm, and that the line defense counsel was
relying on was taken “completely out of context.” The court remarked, “Ms. Johnson, he
doesn’t say that in this. I mean, we can read the whole transcript pages 30 and 31 for the
jury I think, and let them decide what he is saying.”
       “[T]he trial court has discretion to exclude impeachment evidence, including a
prior inconsistent statement, if it is collateral, cumulative, confusing, or misleading.”
(People v. Price (1991) 1 Cal.4th 324, 412; People v. Douglas (1990) 50 Cal.3d 468,
509.) Our reading of the preliminary hearing transcript comports with that of the trial
court. Shephard testified consistently at the preliminary hearing that he had grabbed
defendant’s right arm, and that he could not see defendant’s hands because defendant was
hunched over trying to conceal something. After Shephard mistakenly testified on direct
examination during the preliminary hearing that “he grabbed [defendant’s] hand and kind
of pulled it out,” defense counsel tried to get Shephard to repeat that testimony on cross-
examination. Thus, defense counsel questioned Shephard as follows: “[MS.
JOHNSON]: So it was Mr. Bueno’s right arm that was closest to the door that you
opened, right? [¶] [OFFICER SHEPHARD]: Yes. [¶] [MS. JOHNSON]: So when you
reached in, his hands were together, right? [¶] [OFFICER SHEPHARD]: Yes. [¶] [MS.
JOHNSON]: They were handcuffed, right? [¶] [OFFICER SHEPHARD]: Yes. [¶] [MS.
JOHNSON]: And you said that you grabbed his hands, right? [¶] [OFFICER
SHEPHARD]: I believe I grabbed his arm. [¶] [MS. JOHNSON]: His arm?
[¶] [OFFICER SHEPHARD]: I believe it was his forearm or — around his — probably
his forearm, yeah. [¶] [MS. JOHNSON]: Okay. Grabbed his forearm, and the purpose
of this was to get his hands out from between his legs. Is that what your purpose was?
[¶] [OFFICER SHEPHARD]: The purpose was to see what was in his hands and at the
same time remove him from the vehicle.” A few questions later, there was another
exchange on the same issue: “[MS. JOHNSON]: Yes. Were you pulling him towards
the door? [¶] [OFFICER SHEPHARD]: No. I grabbed his hand, grabbed his forearm,
and as I touched him, I believe his foot swung out. Then we — I think it was kind of in


                                              5
unison that it came out of the door. [¶] [MS. JOHNSON]: Okay. You grabbed his right
forearm and his left hand is coming with it? [¶] [OFFICER SHEPHARD]: I hope so.
[¶] [MS. JOHNSON]: Because his hands are together, right? [¶] [OFFICER
SHEPHARD]: Uh-huh. [¶] [THE COURT]: That is a ‘yes?’ [¶] [OFFICER
SHEPHARD]: Yes.”
       Hence, a complete reading of Shephard’s preliminary hearing testimony makes
clear that Shephard consistently testified that he grabbed defendant’s right arm or forearm
to pull him out of the car. While Shephard made two statements indicating that he
grabbed defendant’s hand, he corrected himself and subsequently testified that he
grabbed defendant’s arm or forearm. Thus, the record as a whole shows that Shephard
misspoke when he said he grabbed defendant’s hand. On these facts, the trial court did
not abuse its discretion in limiting defendant’s attempt to impeach Shephard with his
preliminary hearing testimony.
       Even if the trial court erred in limiting the impeachment evidence, the error was
harmless. The evidence showed that defendant was in a hunched position in the car, and
that Shephard did not see his hands until defendant was out of the car and had fired the
gun. Indeed, Shephard testified that defendant was trying to conceal something in his
hands. Had the court allowed the impeachment where Shephard said “hand” instead of
arm or forearm, it would not have changed the result because it was clear from
Shephard’s testimony that he did not see defendant’s hands when he was attempting to
remove defendant from the patrol car. Rather, the evidence showed that defendant’s
hunched position prevented Shephard from seeing defendant’s hands and the concealed
weapon they held. Any error in not allowing the impeachment was thus harmless beyond
a reasonable doubt. (Chapman v. California (1978) 386 U.S. 18, 24.)
       Defendant also asserts that the court’s admonition to the jury the day following its
exclusion of the impeachment evidence did not mitigate its comments that suggested
defense counsel intended to mislead the jury.3 He argues that the remarks violated his

3
 The court remarked, “Yesterday during the cross-examination of the first witness, when the
witness was being asked about some previous testimony, the Court, at least [at] one point and I

                                                6
right to present a defense, because the jury was left with the impression that there had
been no prior inconsistent statements or that they were of little significance. Defendant
did not make any objection on constitutional grounds to the court’s earlier ruling
excluding the evidence or to the court’s admonition. The claim is therefore not preserved
for appeal. (People v. Earp (1999) 20 Cal.4th 826, 893.) In any event, we must presume
that the jury understood and followed the court’s admonition. (See People v. Martin
(2000) 78 Cal.App.4th 1107, 1111.)
       Defendant further contends that the prosecutor elicited false testimony from
Shephard, who testified that he never said he touched defendant’s hand. Again,
defendant failed to preserve this claim on appeal because he did not object to the alleged
false testimony or prosecutorial misconduct at trial. (See People v. Musselwhite (1998)
17 Cal.4th 1216, 1253.)
       Defendant refers to a portion of the prosecutor’s redirect examination of Shephard
as false: “[MS. HARRISON]: So when counsel indicates that you . . . testified that you
grabbed his hands and pulled his hands up, that is incorrect; you never testified to that; is
that a fair statement? [¶] [SHEPHARD]: Yes.” The prosecutor also asked, “So did you
ever refer to touching the defendant’s hands?” Shephard responded, “No.”
       Defendant contends that this testimony was false because Shephard testified that
he had grabbed defendant’s hand when he pulled him out of the car. As the trial court
found, however, it was clear from reading Shephard’s complete testimony at the
preliminary hearing that Shephard misspoke when he said that he grabbed defendant’s
hand. Shephard consistently testified on both direct and cross-examination, that he could

might have said this twice, and I indicated to defense counsel that I felt that she was misleading
the jury. [¶] Ladies and gentlemen, I’m going to direct you, first of all, to disregard those
comments. I have given some thought to this. I do not — first of all, Ms. Johnson is an
experienced attorney. She has an excellent reputation and I do not believe that she was intending
to mislead the jury in any way and I want you to disregard the comment or comments that I made
in that regard. [¶] I’m also going to remind you that nothing the Court — none of the Court’s
rulings or comments made during the course of the trial should in any way affect your decision
about the facts. Your decision should be made based on the evidence alone and not from any
inference you take from a comment made by the Court, so please keep that in mind, as well.
With that we will continue on.”

                                                7
not see defendant’s hands when he was in the patrol car because defendant was in a
hunched position, and that he had grabbed defendant’s right arm to pull him out of the
car. To the extent that Shephard’s testimony at trial was incorrect given the misstatement
during his preliminary hearing testimony that he grabbed defendant’s hand, even if the
prosecutor’s offer of Shephard’s trial testimony could be considered misconduct, we
cannot conclude that defendant was prejudiced. (See People v. Green (1980) 27 Cal.3d
1, 29 [prosecutorial misconduct requires reversal only when, viewing the record as a
whole, it results in a miscarriage of justice].) The clear import of Shephard’s testimony
was that he could not see defendant’s hands when he pulled him out of the car and that it
was not until the gun fired that he realized that defendant was armed. In view of this
evidence of defendant’s guilt, defendant was not prejudiced by the prosecutor’s offer of
Shephard’s testimony.
B. Pitchess motion
       Prior to trial, defendant made a Pitchess motion seeking to discover any of
Shephard’s personnel records that reflect any instances of misconduct. He argued that
Shephard made false statements in his police report and at the preliminary hearing, and
that any past complaints against Shephard were relevant to the issue of his credibility.
       The Suisun City Police Department opposed the motion, arguing that defendant
had not made the required showing that the information could not be obtained by less
intrusive means, and that defendant had failed to demonstrate good cause for the
discovery of the material sought. The trial court denied the motion, finding that
defendant had not presented a plausible scenario of police misconduct, and that there was
nothing in the affidavits presented that suggested that Shephard had been dishonest or
misleading.
       Defendant made a second motion pursuant to section 1054.14 to request discovery
of two arrest reports of Darion Jamaal Thomas (the owner of the car defendant was


4
  Section 1054.1 sets forth the items the prosecuting attorney must disclose to the defendant if
the items are within his or her possession or in the possession of the investigating agencies: (1)
the names and addresses of the witnesses the prosecutor intends to call; (2) the statements of all

                                                 8
driving when he was arrested) and the statements of Shephard and the other officers who
witnessed the incident which were made during the police department’s internal
investigation. The trial court denied the motion, finding that except for the statements of
Shephard and the other officers, the prosecutor had complied with the motion. The court
further ruled that the statements were part of the police department’s internal affairs
investigation and were within defendant’s earlier Pitchess motion, which the court had
already denied.
       Defendant then filed a third motion pursuant to Pitchess again seeking the
personnel records of Shephard and the other officers who witnessed the incident
including the officers’ statements made in the internal affairs investigation. The court
held an in camera hearing on the motion. It found that the officers’ original reports of the
incident were consistent with their statements during the internal investigation and that
there were no factual discrepancies noted in the report of the internal investigation. The
court remarked that it would so inform defense counsel and the deputy district attorney.
The clerk’s minutes confirm the court’s remarks. We must presume that the court
informed the parties of its ruling. (Evid. Code, § 664 [“It is presumed that official duty
has been regularly performed”].)
       “[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.] A showing of good cause is measured by ‘relatively relaxed standards’ that
serve to ‘insure the production’ for trial court review of ‘all potentially relevant
documents.’ [Citation.]” (People v. Gaines (2009) 46 Cal.4th 172, 179.) The “two-part
showing of good cause is a ‘relatively low threshold for discovery.’ [Citation.]”

defendants; (3) all relevant evidence seized or obtained as a result of the investigation of the
charged offenses; (4) the existence of a felony conviction of any material witness; (5) any
exculpatory evidence; and (6) relevant written or recorded statements of witnesses or reports of
the statements of witnesses whom the prosecutor intends to call at the trial.

                                                9
(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) The Warrick court explained
that the affidavit “must propose a defense or defenses to the pending charges.” (Id. at
p. 1024.) The good cause showing “requires a defendant . . . to 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.” (Id. at p. 1021.) The information which the defendant
seeks must be described with some specificity to ensure that the request is “limited to
instances of officer misconduct related to the misconduct asserted by the defendant.”
(Ibid.)
          Moreover, the affidavit must “describe a factual scenario supporting the claimed
officer misconduct. That factual scenario, depending on the circumstances of the case,
may consist of a denial of the facts asserted in the police report.” (Warrick, supra, 35
Cal.4th at pp. 1024–1025.) However, the factual scenario must be a “plausible scenario
of officer misconduct,” a scenario that “might or could have occurred. Such a scenario is
plausible because it presents an assertion of specific police misconduct that is both
internally consistent and supports the defense proposed to the charges.” (Id. at p. 1026.)
          When the defendant establishes good cause for Pitchess discovery, he or she is
entitled to the trial court’s in-chambers review of the arresting officers’ personnel records
relating to the plausible scenario of officer misconduct. (Warrick, supra, 35 Cal.4th at
p. 1027.) The purpose of the in-chambers review is to determine relevance under the
provisions of Evidence Code section 1045. This review allows the court to issue orders
protecting the officer or agency from “unnecessary annoyance, embarrassment or
oppression.” (Id., subd. (d).) These provisions strike a balance between the legitimate
privacy interests of the officer and the defendant’s right to a fair trial. (Warrick, supra,
35 Cal.4th at p. 1028.)
          Relying on Rezek v. Superior Court (2012) 206 Cal.App.4th 633, defendant
contends that the trial court should have ordered the disclosure of the officers’ statements.
In Rezek, the court held a defendant may obtain the statements of witnesses to the crime
for which the defendant is charged even if the statements were obtained as a result of an


                                              10
internal affairs investigation and placed in an officer’s personnel file so long as the
disclosure is not precluded by Evidence Code section 1045.5 (Id. at pp. 642–643.) The
Rezek court remanded the matter to the trial court to conduct an in camera inspection of
the relevant documents as provided by Evidence Code section 1045, subdivision (b), and
to disclose any documents not precluded from disclosure by statute. (Id. at pp. 644.)
       Rezek is of no assistance to defendant. Here, the trial court did conduct an in
camera hearing to determine whether the discovery sought was relevant to defendant’s
trial. The record reflects that the court found that the officers’ statements of the incident
were consistent with the police department’s internal investigation and that the court
would so inform the parties. No error appears.
       Defendant also argues that the court violated his right to due process because it
should have granted his motion for discovery of the witness statements even without a
Pitchess motion. The courts, however, have consistently rejected this argument. (City of
Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81–82 [the Pitchess procedure is
codified by statute]; Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 57 [Pitchess
procedure is sole means by which discovery of confidential peace officer files can be
obtained].) The court did not violate due process by following the Pitchess procedure in
reviewing defendant’s discovery motions. We have reviewed the court’s rulings on
defendants’ three motions seeking the witness statements of the officers and have
concluded that the court did not abuse its discretion in denying the motions. (People v.
Rezek, supra, 206 Cal.App.4th at p. 641 [Pitchess motion is within the wide discretion of
the trial court].)

5
  Evidence Code section 1045, subdivision (a) provides that “[n]othing in this article shall be
construed to affect the right of access to records of complaints, or investigation of complaints, or
discipline imposed as a result of those investigations, concerning an event or transaction in
which the peace officer or custodial officer . . . participated, or which he or she perceived, and
pertaining to the manner in which he or she performed his or her duties, provided that
information is relevant to the subject matter involved in the pending litigation.” Subdivision (b)
of Evidence Code section 1045 sets forth the criteria for the court to consider in determining
whether requested discovery is relevant including whether any complaints concerning conduct
occurred more than five years before the event that is the subject of the litigation for which
discovery is sought.

                                                 11
                                 III. DISPOSITION
     The judgment is affirmed.




                                             _________________________
                                             Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.




                                        12
