Filed 7/7/16 P. v. Heath CA1/2
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


 THE PEOPLE,
           Plaintiff and Respondent,                                 A146051

 v.                                                                  (Contra Costa County
 DARVIN DAVID HEATH,                                                 Super. Ct. No.
                                                                     XX-XXXXXXX)
           Defendant and Appellant.




                                                INTRODUCTION
         At the prosecutor’s request, the trial court held an in camera hearing outside the
presence of the defendant and his attorney to determine whether the prosecution was
required to disclose certain material to the defendant under Brady v. Maryland (1963)
373 U.S. 83, 87 (Brady). The trial judge determined that there was nothing to disclose.
Defendant Darvin David Heath asks us to independently review the in camera
proceedings to determine whether the trial court erred. The Attorney General does not
oppose our independent review of the in camera proceeding. We have done so, and will
affirm the conviction.
                        FACTUAL AND PROCEDURAL BACKGROUND
         We recite the facts and procedural history only briefly as they pertain to the
narrow issue on appeal.
         Defendant was charged with three felonies involving domestic violence against his
wife, Robin Williams-Heath, all arising out of the same incident occurring on February
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13, 2015, in a park off the Pittsburg/Antioch Highway in Pittsburg. He was charged with
infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a))1; assault with a
deadly weapon (§ 245, subd. (a)(1))); and aggravated false imprisonment involving
infliction of great bodily injury (§§ 236, 237, subd. (a)). Each of the felonies was
charged as a serious felony (§§ 1192.7, subd. (c); 667), and each included enhancements
for personal use of a dangerous or deadly weapon, that is, a letter opener (§ 12022, subd.
(b)(1)) and for one “prison prior” (§ 667.5, subd. (b)).
         In a bifurcated trial, a jury found the defendant guilty of the three offenses and
found the three deadly-weapon enhancements true. After the trial court indicated that it
would not grant probation, the prosecution decided not to go forward with a court trial on
the “prison prior” enhancement. Defendant was sentenced to an aggregate term of five
years.
         Clayton Sills, 23 years old at the time he testified at trial on July 7, 2015, was a
bystander who happened to be at the park with his child and fiancée when the incidents
occurred on February 13, 2015. He did not know defendant or the victim before the
incident; he called 911 to report it. Sills testified at trial about what he saw and heard.
                                          DISCUSSION
         During in limine motions on July 6, 2015, defense counsel noted that the
prosecution had disclosed there may be information regarding witness Sills that could
only be disclosed pursuant to an “827 petition,” presumably referring to Welfare and
Institutions Code section 827, which governs access to juvenile records. Defense counsel
had not filed a petition for such documents.
         The next day, on the record and outside the presence of the jury, the court stated,
“My understanding is that the clerk of the court has no file in reference to a criminal
adjudication—juvenile—it may be some sort of a civil matter. If there is, then it strikes
me as having a fairly remote chance that there would be some pertinent information in
a—what they call a 300 case, a dependency case. From what I understand, the case may

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             All statutory references are to the Penal Code unless otherwise stated.

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have some age on it too.” The court continued that “[w]e have asked the clerk to dig up
anything that might be directly pertinent to impeachment. It strikes me as being more
possibly related to impeachment if you have a 600 matter which is a—criminal allegation
which gets adjudicated in juvenile court. There is not one of those cases.” Defense
counsel indicated that she had filed an “827 petition,” including “300 matters,”
presumably referring to Welfare and Institutions Code section 300, et seq., regarding
dependent children. The court noted, “I had my clerk checking on the existence of a civil
file. I will take a look at it.”
       The prosecutor then stated that there were “things from 2005 and 2006 when
[Sills] was 13-years old. I have no—there is nothing reflected on the information that I
have that suggested some adjudication just some contact that is possibly reflected.”
       The trial court stated, “I’m giving you some preliminary feedback here. There is
no file at all suggesting a petition was filed alleging criminal behavior [by Sills].”
       The court clerk then handed the court “two items possibly relating,” which were
marked as Court Exhibit No. 2. The trial judge reviewed Exhibit No. 2 and described it
as “two different items, both of which appear to possibly relate to Mr. Sills. Neither of
which in the Court’s judgment would call for any further investigation of these two
matters. One is a traffic matter and one is a—to put it in its most general terms, a probate
matter from 2011. And the traffic matter is more recent than that. Neither of them would
suggest any information that is usable as impeachment. So that still doesn’t cover the
time frame that you are talking about.”
       The prosecutor took up defense counsel’s earlier suggestion for an in camera
hearing so that the prosecutor could “show [the court] what I have.” Defense counsel
stated she had no objection to an in camera proceeding.
       On July 9, 2015, the trial court held an in-camera hearing at which the prosecutor,
but not defense counsel, was present.
       The trial court ruled that nothing was discoverable. On July 21, the court stated on
the record and outside the presence of the jury: “It seems very clear from me from all of
the various types of investigation that the Court has done in reference to any possible

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juvenile record that Mr. Sills may have that there is nothing there that is discoverable.
[¶] So our transcript is going to remain under seal, and it would be available to whoever
might want to review it. But there—is what I was told in camera about the information
and there is also then the Court’s independent research into the nature and extent of any
juvenile court record that may exist quite apart from what [the prosecutor] knows and in
the Court’s view there is simply there is no information there that is discoverable.” To
which the prosecutor replied, “That’s all we can do.” The court concluded, “There may
be there is no information there period. I think I could say that on the record.”
       The prosecution has a duty to disclose material favorable evidence to a criminal
defendant. (Brady, supra, 373 U.S. at p. 87.) Typically the prosecution makes it own
decision as to what constitutes Brady material, but it is permissible in certain cases to
seek assistance from the court. (See United States v. DuPuy (9th Cir. 1985) 760 F.2d
1492, 1501.) Turning documents over to the trial court for it to make the decision is
“particularly appropriate when the [prosecution] has legitimate reasons for protecting the
confidentiality of the material requested.” (Id. at p. 1501; see Hoffstadt, California
Criminal Discovery (5th ed. 2015) § 4.29(a), p. 137.)
       At the request of defendant and without objection by the Attorney General, we
have reviewed Court Exhibit No. 2 and the transcript of the in camera hearing. We find
no error, under any standard of review, in the court’s in camera review relating to Sills
and its decision that nothing further was discoverable.
                                      DISPOSITION
       The judgment is affirmed.




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                                _________________________
                                Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.




A146051, People v. Heath




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