Filed 9/30/14 P. v. Howell CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F066587

                   v.                                                    (Super. Ct. No. F10904409)

RONNIE EARL HOWELL,                                                               OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Fresno County. Wayne R.
Ellison, Judge.
         Benjamin Owens, 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, and Julie A. Hokans, Deputy
Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Poochigian, Acting P.J., Franson, J., and Peña, J.
       Defendant Ronnie Earl Howell appeals from the trial court’s denial of his
Pitchess1 motion, contending the court erroneously determined he failed to establish good
cause for an in camera review of a peace officer’s personnel file. We affirm.
                             PROCEDURAL SUMMARY
       On February 14, 2012, the Fresno County District Attorney charged defendant
with driving with a blood alcohol level of 0.08 percent or higher (Veh. Code, § 23152,
subd. (b);2 count 1), driving under the influence of alcohol or drugs (§ 23152, subd. (a);
count 2), and misdemeanor evading a peace officer (§ 2800.1, subd. (a); count 3). The
information also included various special allegations.
       Defendant filed a Pitchess motion and the People filed an opposition. The trial
court denied the motion.
       A jury found defendant guilty on all counts, and the trial court found true various
allegations. The court sentenced defendant to a total of eight years in prison.
                                         FACTS
       On August 26, 2010, at approximately 12:45 a.m., Police Officers Cowart and
Syvongxay were on duty together in a marked patrol vehicle near Fruit Avenue and
Kearney Boulevard, an area considered a “hot spot.” Cowart noticed a set of taillights
“kind of disappearing through the neighborhood.” He noticed no other traffic. He
attempted to follow the vehicle, just to see what it was doing, even though it had done
nothing illegal yet. The vehicle kept turning onto various side streets and Cowart had
trouble keeping up without driving excessively fast or dangerously, so he pulled off into
some shadows and bushes. As he waited, a dark-colored sedan stopped nearby and


1     Pitchess v. Superior Court (1974) 11 Cal.3d 531; Evidence Code sections 1043
through 1045.
2      All statutory references are to the Vehicle Code unless otherwise noted.


                                             2
remained parked with its lights off. Cowart was not sure it was the same vehicle he had
seen earlier. Shortly thereafter, the vehicle’s lights came back on and the vehicle
signaled to make a left turn. Cowart turned on his headlights and came out of the
shadows. Suddenly, the vehicle made a right turn while still signaling left. Cowart
followed. The vehicle accelerated before making a rather quick turn, and then it swerved
slightly. It accelerated and decelerated. It kept swerving slightly and making turns onto
residential streets as Cowart followed. Some of the streets had speed bumps. Up to this
point, Coward considered the driving poor, but not illegal.
       As the vehicle approached Fruit Avenue again, it ran the stop sign at about
15 miles per hour, a violation of the Vehicle Code. At this point, Cowart activated his
siren and overhead lights, and he kept them on throughout the remainder of the chase. He
stayed about 50 feet behind the vehicle. He could see the driver in his side mirror
because the driver’s window was open. Cowart made eye contact with the driver, but he
still did not stop. Cowart briefly shined his spotlight on the vehicle to get the driver’s
attention, but the driver drove through the next stop sign as well, this time going about
25 miles per hour. The driver did not slow down, signal, or show any signs of stopping.
The driver made a U-turn and eventually stopped near the place Cowart had seen the
vehicle 20 minutes earlier. During the entire chase, Cowart never saw another vehicle
driving on the roads.
       Backup arrived and the officers drew their guns as they asked the driver to get out.
They did so because of the suspicious chase, the driver’s refusal to stop, and also the
gang and drug activity in the neighborhood. Defendant was the driver and only occupant
of the vehicle. Cowart asked for his information, patted him down for weapons, then
handcuffed him and put him in the back of the patrol vehicle. Cowart quickly noticed
that defendant smelled of an alcoholic beverage. Cowart conducted a horizontal gaze
nystagmus test. As Cowart worked to verify defendant’s information on the telephone,

                                              3
defendant started kicking the rear windows of the patrol vehicle. Cowart told him to
stop, but he continued. Cowart opened the door and told him to stop or he would be
hobbled.
       Officer Dellone of the Traffic Enforcement Division arrived to conduct a thorough
driving under the influence investigation. He immediately noticed defendant’s moderate
odor of alcohol and his red, watery eyes. He removed defendant’s handcuffs and
performed various field sobriety tests. He concluded defendant was impaired and he
placed him under arrest for driving under the influence of alcohol. Dellone told
defendant he was required to take a blood or breath test, but defendant refused.
       Cowart transported defendant as Dellone followed on his motorcycle. Defendant
started kicking the rear windows of the patrol vehicle again, so Cowart pulled over and
called a wagon for transport. Defendant was later required to take a blood test, which
yielded a result of 0.16 percent blood alcohol, with a margin of error of 0.01 percent. No
weapons or contraband were found on defendant or in his car.
                                      DISCUSSION
I.     Law
       On 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
who is accused of misconduct against the defendant. (People v. Gaines (2009) 46 Cal.4th
172, 179 (Gaines).) “To initiate discovery, the defendant must file a motion supported by
affidavits [or declarations] showing ‘good cause for the discovery,’ first by demonstrating
the materiality of the information to the pending litigation, and second by ‘stating upon
reasonable belief’ that the police agency has the records or information at issue.
[Citation.]” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) “If the
trial court finds good cause for the discovery, it reviews the pertinent documents in



                                             4
chambers and discloses only that information falling within the statutorily defined
standards of relevance. [Citations.]” (Ibid.)
       The threshold for showing good cause to compel discovery is “‘relatively low.’
[Citation.]” (Warrick, supra, 35 Cal.4th at p. 1019.) Nevertheless, “a showing of good
cause requires a defendant seeking Pitchess discovery 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. [The Supreme Court] has long required that the information
sought must be described with some specificity to ensure that the defendant’s request is
not so broad as to garner ‘“all information which has been obtained by the People in their
investigation of the crime”’ but is limited to instances of officer misconduct related to the
misconduct asserted by the defendant. [Citations.] [¶] This specificity requirement
excludes requests for officer information that are irrelevant to the pending charges. (See,
e.g., People v. Hustead[ (1999)] 74 Cal.App.4th [410,] 416 [prior complaints of excessive
force by arresting officer ‘irrelevant’ after charge of resisting arrest was dropped and
remaining charge was evasion of arrest in an automobile].) And it enables the trial court
to identify what types of officer misconduct information, among those requested, will
support the defense or defenses proposed to the pending charges. This inquiry establishes
the statutorily required materiality prong of the good cause showing that a defendant
must make to receive in-chambers review of potentially relevant officer records.” (Id. at
pp. 1021-1022.)
       “[D]efense counsel’s declaration in support of a Pitchess motion must propose a
defense or defenses to the pending charges. The declaration must articulate how the
discovery sought may lead to relevant evidence or may itself be admissible direct or
impeachment evidence [citations] that would support those proposed defenses.”
(Warrick, supra, 35 Cal.4th at p. 1024.) “Counsel’s affidavit must also describe a factual

                                                5
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.” (Id. at pp. 1024-1025.) “In [some] cases, the trial court hearing a Pitchess
motion will have before it defense counsel’s affidavit, and in addition a police report,
witness statements, or other pertinent documents. The court then determines whether
defendant’s averments, ‘[v]iewed in conjunction with the police reports’ and any other
documents, suffice to ‘establish a plausible factual foundation’ for the alleged officer
misconduct and to ‘articulate a valid theory as to how the information sought might be
admissible’ at trial. [Citation.] Although a Pitchess motion is obviously strengthened by
a witness account corroborating the occurrence of officer misconduct, such corroboration
is not required. What the defendant must present is a specific factual scenario of officer
misconduct that is plausible when read in light of the pertinent documents. [Citations.]”
(Id. at p. 1025.)
       As noted, “[t]o determine whether the defendant has established good cause for in-
chambers review of an officer’s personnel records, the trial court looks to whether the
defendant has established the materiality of the requested information to the pending
litigation.” (Warrick, supra, 35 Cal.4th at p. 1026.) In analyzing “whether the defendant
has established the materiality of the requested information to the pending litigation,” the
court conducts “the following inquiry: Has the defense shown a logical connection
between the charges and the proposed defense? Is the defense request for Pitchess
discovery factually specific and tailored to support its claim of officer misconduct? Will
the requested Pitchess discovery support the proposed defense, or is it likely to lead to
information that would support the proposed defense? Under what theory would the
requested information be admissible at trial? If defense counsel’s affidavit in support of
the Pitchess motion adequately responds to these questions, and states ‘upon reasonable
belief that the governmental agency identified has the records or information from the

                                              6
records ([Evid. Code, ]§ 1043, subd. (b)(3)), then the defendant has shown good cause for
discovery and in-chambers review of potentially relevant personnel records of the police
officer accused of misconduct against the defendant.” (Id. at pp. 1026-1027.)
       We review a trial court’s ruling on a Pitchess motion for abuse of discretion.
(People v. Samayoa (1997) 15 Cal.4th 795, 827.)
II.    Background
       Defendant’s Pitchess motion included a declaration by defense counsel (but no
police report), which stated in relevant part:3

             “5. Officer Sean Cowart prepared a report of the events at Kearney
       and Fruit on August 26, 2010 and it contains materially false and
       misleading statements.

              “6. Officer Cowart writes in his report that [defendant] was driving
       southbound Fruit from Kearney. The officer then writes that the vehicle
       drove ‘erratically throughout the neighborhood.’ Based on my
       investigation and the Officer’s other statements as well as a [sic] the
       statements of [defendant], Officer Cowart’s statements are false and
       misleading.

              “7. Officer Cowart’s movements as noted in the report make it
       impossible for him to have observed the driving he claims he observed. He
       has attempted to hide this fact by use of vague descriptions and placing the
       vehicle he was interested in in locations that it was not. Officer Cowart
       also indicates speed fluctuations but omits the fact that numerous sets of
       speed bumps are present on the streets where he says he observed the
       driving and account for any fluctuations of speed. Cowart’s omission of
       this point is misleading and his misstatements created probable cause to
       stop the vehicle where no probable cause existed. [¶] … [¶]

              “9. The requested documents and records are relevant to and
       necessary for [defendant’s] defense to the charges filed against him. The
       materials are relevant to impeach the People’s witnesses at trial and to
       establish a pattern of misleading and false police reports. The materials


3      These are the portions of the declaration cited in defendant’s brief.


                                              7
will also tend to corroborate defense testimony about what actually
occurred that evening.”
At the hearing on the Pitchess motion, the following occurred:

        “[DEFENSE COUNSEL]: Well, Your Honor, I believe that there is
sufficient cause established in the declaration. I note that [the City
Attorney] argued that a simple denial is not enough, but the authority he
cites actually indicates that it is in certain circumstances. If the Court
wished additional information, it would be our request to do that in camera,
excluding the District Attorney from that end, and the City Attorney, but I
believe there is sufficient cause for a Pitches[s] discovery.

       “THE COURT: [City Attorney,] want to respond?

        “[CITY ATTORNEY]: Yes, Your Honor. Basically there are some
circumstances when the police report[] provides additional circumstances
that a denial may be sufficient, but in this case it is not. And what he is
arguing is to the probable cause that he is arguing against, because the
probable cause of the arrest was the running of the stop sign. Nothing to do
with the speed bumps. Nothing to do with any of the other allegations in
the papers, and we would submit it on our pleadings.

       “[DEFENSE COUNSEL]: If I may respond?

       “THE COURT: Sure.

        “[DEFENSE COUNSEL]: The issue goes beyond just the running
of the stop sign. The issue goes to the credibility of the officers. This is a
DUI. The observations of driving—erratic driving, these are all critical
pieces of the People’s evidence at trial.

       “[CITY ATTORNEY]: And those are presentable at trial, not in the
Pitchess motion.

      “THE COURT: Okay then. The Court has read and considered both
the motion as well as response by the People. At this time I’m denying the
motion. I believe that the defense has failed to make the minimal showing
of good cause to obtain said records.”




                                       8
III.   Analysis
       Defendant contends he established good cause for a review of Officer Cowart’s
personnel file. Defendant explains that Cowart was the sole testifying witness to
defendant’s driving. He says Cowart’s testimony constituted a substantial part of the
evidence for the driving under the influence charges and all of the evidence for the
evasion charge. And he maintains that Cowart’s credibility was a significant issue and
any impeachment evidence would have been material.
       To summarize, defense counsel’s declaration alleged that (1) Cowart falsely stated
defendant was driving southbound on Fruit Avenue from Kearney Boulevard, (2) Cowart
falsely stated the vehicle drove erratically through the neighborhood, (3) Cowart falsely
stated he observed certain driving because his claimed movements made it impossible for
him to have observed it, (4) Cowart falsely stated the vehicle was in certain locations,
(5) Cowart failed to state that speed bumps were present and accounted for the vehicle’s
speed fluctuations, (6) Cowart’s misstatements and failure to mention the speed bumps
falsely created probable cause to stop the vehicle where no probable cause existed, and
(7) Cowart’s personnel file was relevant to impeach prosecution witnesses, establish a
pattern of false police reports, and corroborate defense testimony about “what actually
occurred that evening.”
       But defense counsel’s declaration failed to clearly propose a defense or defenses to
the pending charges, never explaining “what actually occurred that evening.” The
allegations themselves suggested various defenses, such as defendant did not drive
erratically or fluctuate in speed, defendant was not in the neighborhood, or defendant was
not where Cowart said he was. Yet the declaration does not explain how evidence that
Cowart’s claims were false would assist defendant’s defense against the pending charges.
The declaration also failed to provide a complete and specific factual scenario regarding
Cowart’s alleged misconduct. For example, it failed to explain what facts in Cowart’s

                                             9
report made it impossible for him to have observed the driving he claimed he observed or
what facts he relied on in his report to create probable cause to stop the vehicle. We thus
conclude that defendant’s Pitchess motion did not establish good cause for the discovery
of Cowart’s personnel file. The trial court properly exercised its discretion in denying the
Pitchess motion.
       Furthermore, defendant cannot show prejudice. (Gaines, supra, 46 Cal.4th at
p. 181 [it is settled that an accused must demonstrate that prejudice resulted from trial
court’s error in denying discovery]; People v. Memro (1985) 38 Cal.3d 658, 684
[prejudice required for relief on appeal], disapproved on another point in Gaines, at
p. 181, fn. 2.) To establish prejudice, defendant must show there was a reasonable
probability that the outcome of the case would have been different had information been
disclosed to the defense. (Gaines, at pp. 182-183.)
       First, the discovery defendant sought—which we will call evidence of the falsity
of Cowart’s claims of erratic driving and speed fluctuations—was not material to the
evasion charge (§ 2800.1, subd. (a)), and defendant is incorrect that evidence of his
erratic driving and speed fluctuations accounted for all of the evidence on the evasion
charge. Under section 2800.1, evading a pursuing police officer requires (in addition to
the intentional act) that “(1) The peace officer’s motor vehicle is exhibiting at least one
lighted red lamp visible from the front and the person either sees or reasonably should
have seen the lamp. [¶] (2) The peace officer’s motor vehicle is sounding a siren as may
be reasonably necessary. [¶] (3) The peace officer’s motor vehicle is distinctively
marked. [¶] (4) The peace officer’s motor vehicle is operated by a peace officer … and
that peace officer is wearing a distinctive uniform.” (§ 2800.1, subd. (a).) In this case,
these required conditions did not exist until defendant ran the first stop sign and Cowart
turned on the lights and siren, after which defendant refused to stop. According to
Cowart, defendant’s erratic driving and speed fluctuations occurred before he ran the stop

                                             10
sign, and thus they were not relevant to the evasion charge. Consequently, evidence of
the falsity of Cowart’s claims of erratic driving and speed fluctuations would not have
resulted in a better outcome for defendant on the evasion charge. (Gaines, supra, 46
Cal.4th at pp. 182-183.)
       Evidence of the falsity of Cowart’s claims of erratic driving and speed fluctuations
was also not material to the driving with a blood alcohol level of 0.08 percent or higher
charge (§ 23152, subd. (b)). This offense, referred to as “the per se DUI offense,”
requires no proof of impairment other than a 0.08 percent or higher blood alcohol
content. (People v. McNeal (2009) 46 Cal.4th 1183, 1193-1194 [if legal limit of blood
alcohol is exceeded, § 23152, subd. (b) is violated; no other proof of impairment is
required]). Again, evidence of the falsity of Cowart’s claims of erratic driving and speed
fluctuations would not have resulted in a better outcome for defendant on this charge.
(Gaines, supra, 46 Cal.4th at pp. 182-183.)
       And although evidence of the falsity of Cowart’s claims of erratic driving and
speed fluctuations was material to the driving under the influence charge (§ 23152,
subd. (a); People v. McNeal, supra, 46 Cal.4th at p. 1193 [driving under the influence
requires proof driver was actually impaired at the time of offense]), defendant cannot
show prejudice due to other compelling evidence that he was under the influence of
alcohol (see People v. Samuels (2005) 36 Cal.4th 96, 110 [if trial court erred in not
finding good cause in support of Pitchess motion, error was harmless in light of extensive
evidence linking defendant to murders]). Defendant’s blood alcohol content was
0.16 percent, twice the amount made illegal by section 23152, subdivision (b), and the
jury credited this evidence, finding defendant guilty of driving with a blood alcohol level
of 0.08 percent or higher. This finding created the presumption that he was under the
influence of alcohol. (§ 23610, subd. (a)(3) [“If there was at that time [of testing]
0.08 percent or more, by weight, of alcohol in the person’s blood, it shall be presumed

                                              11
that the person was under the influence of an alcoholic beverage at the time of the alleged
offense”].) Furthermore, defendant’s performance on field sobriety tests, which led
Dellone to conclude defendant was under the influence, was even more evidence of his
impairment. Accordingly, it is not reasonably probable that evidence of the falsity of
Cowart’s claims of erratic driving and speed fluctuations would have resulted in a better
outcome for defendant on the driving under the influence charge. (Gaines, supra, 46
Cal.4th at pp. 182-183.)
       As for defense counsel’s allegation that Cowart’s false statements about the erratic
driving speed fluctuations and his failure to mention the speed bumps falsely created
probable cause to stop the vehicle where there was no probable cause to do so, any
materiality was lost when Cowart testified at trial that (1) many of the streets had speed
bumps, and (2) the erratic driving and speed fluctuations were not illegal, and probable
cause to stop the vehicle did not arise until the vehicle ran a stop sign in violation of the
Vehicle Code.4 Again, there is no reasonable probability of a better outcome had the
information been disclosed. (Gaines, supra, 46 Cal.4th at pp. 182-183.)
       In sum, we conclude the trial court did not abuse its discretion by not finding good
cause to conduct a review of Officer Cowart’s personnel file and denying the Pitchess
motion. Moreover, defendant cannot show he was prejudiced by not receiving the
discovery he sought.
                                       DISPOSITION
       The judgment is affirmed.


4      See Whren v. United States (1996) 517 U.S. 806, 810 [“the decision to stop an
automobile is reasonable where the police have probable cause to believe that a traffic
violation has occurred”]; People v. Brown (1998) 62 Cal.App.4th 493, 496-497 [an
“officer may legally stop a motorist he suspects of violating the Vehicle Code for the
purpose of issuing a citation”].


                                              12
