Filed 12/2/14 P. v. Escobar CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


THE PEOPLE,                                                          B252220
                                                                     (Consolidated with B252680)
         Plaintiff and Respondent,
                                                                     (Los Angeles County
         v.                                                          Super. Ct. No. LA071044)

OSCAR ESCOBAR,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Susan M. Speer, Judge. Affirmed with directions.

         Rachel Varnell, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Linda C. Johnson and Tita Nguyen, Deputy Attorneys General, for Plaintiff and
Respondent.


                                              __________________
       This consolidated appeal follows convictions after the revocation of appellant
Oscar Escobar’s (Escobar) probation in one case (B252220) and jury trial in another case
(B252680). Escobar argues that (1) the trial court erred in denying his motion for
discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and
refusing to conduct an in camera review of documents in the personnel files of two police
officers; and (2) an amended abstract of judgment should be issued to reflect the trial
court’s order striking his prior prison term enhancement.
       We conclude that the trial court did not abuse its discretion in refusing to conduct
an in camera review of documents. But, we agree with the parties that an amended
abstract of judgment must be issued to reflect the trial court’s order striking his prior
prison term enhancement under Penal Code section 667.5, subdivision (b).1
                            PROCEDURAL BACKGROUND
I. California Court of Appeal Case Number B252220
       In May 2012, the Los Angeles County District Attorney filed a felony complaint
charging Escobar with a single count of possession of a controlled substance (Health &
Saf. Code, § 11377, subd. (a)) in Los Angeles County Superior Court case Number
LA071044. The complaint also alleged that Escobar had suffered a prior prison term
(§ 667.5, subd. (b)).
       After waiving his constitutional right to a jury trial, Escobar pleaded guilty as
charged and admitted the special allegation. The trial court suspended imposition of
Escobar’s sentence and placed him under formal probation for one year under the terms
and conditions of Proposition 36. It also credited him with 28 days of presentence
custody and ordered him to pay various fines and fees.
       Escobar violated his probation by failing to appear on August 6, 2012,
September 20, 2012, October 31, 2012, and December 19, 2012. He separately admitted
each violation and the trial court revoked and then reinstated his probation and the terms
and conditions of Proposition 36 each time.

1      All further statutory references are to the Penal Code unless otherwise indicated.

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       Escobar later admitted to violating his probation in this case, and the trial court
revoked and terminated his probation. It ordered that Escobar serve the low term of 16
months in county jail, but ordered that the sentence run concurrently with his sentence in
a subsequent case (discussed infra). It also credited Escobar with 488 days of
presentence custody and imposed the previously ordered fines and fees.
       Escobar timely filed a notice of appeal, which he subsequently limited to matters
unrelated to the validity of the plea.
II. California Court of Appeal Case Number B252680
       In a single-count information dated February 27, 2013, the Los Angeles County
District Attorney charged Escobar in Los Angeles County Superior Court case Number
LA073122 with possession of a controlled substance (Health & Saf. Code, § 11377, subd.
(a)). The information also alleged that Escobar had suffered a prior prison term.
       Escobar pleaded not guilty and denied the special allegation. He filed a motion for
discovery pursuant to Pitchess, supra, 11 Cal.3d 531, which the city attorney opposed
and the trial court denied. Escobar later filed a second Pitchess motion, which the city
attorney again opposed, and which the trial court also denied.
       Trial was by jury. The jury convicted Escobar as charged and he subsequently
admitted the special allegation.
       The trial court denied probation and sentenced Escobar to the low term of 16
months in county jail, imposed and stayed a one-year enhancement for his prior prison
term allegation, and ordered the sentence to run concurrently with any other sentence. It
credited Escobar with 533 days of presentence custody and ordered him to pay various
fines and fees.
       Escobar timely filed a notice of appeal.
III. Consolidation of the Appeals
       On February 20, 2014, this court took judicial notice of another case, B249547,
relating to a petition for writ of mandate that Escobar had filed on June 24, 2013. In that
writ petition, Escobar argued that the trial court’s order denying his second Pitchess
motion was legally incorrect. After all, he did not simply deny the police allegations;

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rather, he set forth a scenario of events that established the materiality of the sought-after
discovery. In an order filed on July 10, 2013, this court denied Escobar’s petition for writ
of mandate. (Escobar v. Superior Court (July 10, 2013, B249547).)
       On April 16, 2014, Escobar’s appeals in case Numbers B252220 and B252680
were consolidated.
                               FACTUAL BACKGROUND
I. Prosecution Evidence
       On January 22, 2013, Los Angeles City Police Officers Tony Chang and Michael
Beyda were on uniformed patrol in a marked car at Lankershim Boulevard and Sherman
Way, a known hangout for narcotics users, probationers, and parolees. Officer Chang
saw a man he did not know, and who was later identified as Escobar, at the rear of a taco
stand rocking back and forth. Escobar made eye contact with Officer Chang and then
discarded three items about a foot from his feet. Officer Chang saw that one of the items
was a methamphetamine pipe with a white crystalline substance on it.
       After Officer Beyda parked the patrol car and both officers got out, they ordered
Escobar to stop so that they could conduct a narcotics investigation. Escobar turned and
ran westbound, away from Lankershim Boulevard, on Sherman Way. Officer Beyda ran
after him. Although Officer Chang initially ran after Escobar, he soon returned to the
police car because it was still running. Officer Beyda chased Escobar on foot while
Officer Chang followed in the patrol car. Escobar stopped at a dead end near a business
that was closed. Escobar was attempting to climb a fence when Officer Beyda
approached, but got down from the fence on his own. It appeared as if Escobar was
trying to double back and retrace his steps toward Sherman Way, but had either laid
down or tripped and fell.
       Escobar was taken into custody, extremely exhausted, breathing heavily, and
uncooperative. More officers arrived and Officer Beyda returned to the corner of
Lankershim Boulevard and Sherman Way. There, he learned that another officer had
recovered the items that Officer Chang saw Escobar discard.



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       Before Officers Chang and Beyda drove Escobar to the North Hollywood station,
Officer Beyda searched Escobar to the best of his ability for weapons, despite Escobar’s
limp body, which he leaned against the trunk of the patrol car. At the station, Escobar
remained uncooperative and refused to provide the officers with his name. Officer
Beyda saw no injuries on Escobar, but recalled that he was wearing only one shoe.
       During the booking process, Officer Beyda searched Escobar again, this time more
thoroughly. He recovered a blue plastic baggie containing a white crystalline substance
resembling methamphetamine.2
       Ten or 15 minutes later, Escobar complained of shortness of breath and pain in his
ankle. Officers Beyda and Chang requested an ambulance, which transported Escobar to
Sherman Oaks Hospital.
II. Defense Evidence
       The defense did not present any evidence at trial.
                                      DISCUSSION
I. The trial court did not err in denying Escobar’s Pitchess motion
       Escobar argues that because he set forth a plausible factual scenario that satisfied
the low threshold showing required under the Pitchess/Warrick3 standard, the trial court
abused its discretion in denying his second Pitchess motion and failing to conduct an in
camera review of the requested documents.
       A. Relevant Proceedings
              1. First Pitchess Motion
       Prior to trial, Escobar filed a Pitchess motion seeking discovery regarding Officers
Chang and Beyda. Defense counsel declared that “Officers Chang and Beyda came upon
[Escobar] who was sitting in his parked car, eating. Officers pulled [Escobar] out of his



2    At trial, a criminalist testified that the white substance was 0.10 grams of
methamphetamine.

3      Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick).

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car without explanation, beat [him], broke his ankle, and falsely accused him of being in
possession of drugs.”
       The city attorney opposed the motion, relying on Warrick to argue that Escobar
had not set forth the requisite specific factual scenario. Defense counsel responded that
Escobar was merely eating in his car when the officers pulled him out, without
explanation, and beat him up. While counsel acknowledged that the versions of the
events given by Escobar and the police were very inconsistent, Escobar’s obligation had
been met by his version of what had occurred.
       The city attorney responded that Escobar failed to explain why, out of all the
people in Los Angeles, the officers selected and allegedly accosted him. Escobar also
failed to flush out details about statements he made or his conduct when the officers
approached him; he also did not set forth “a specific factual scenario of at least of who,
what, when, where, why, and how,” as required by Warrick.
       The trial court denied the Pitchess motion because it failed to satisfy the Warrick
standard, which requires a “plausible specific factual scenario when read in light of all
the undisputed facts” as to officer misconduct as to each officer alleged.
              2. Second Pitchess Motion
       Escobar later filed a second pretrial Pitchess motion, in which defense counsel
declared that Escobar was sitting in his parked car at the corner of Sherman Way and
Lankershim Boulevard, eating food he had just purchased. When he finished eating,
Escobar opened the car door, heard someone yell, “Get out of the car,” and saw two
unidentified men with their guns drawn. According to defense counsel’s declaration,
Escobar knew the area was a high crime neighborhood; he got out of the car and ran until
he was tackled and beaten to unconsciousness by the officers.
       In opposition, the city attorney pointed out a “glaring inconsistency” between
defense counsel’s first and second declarations. In the first Pitchess motion, defense
counsel declared that Escobar was pulled from his car and beaten. But, in the second
Pitchess motion, Escobar got out of the car, ran, and then was beaten after he was caught.



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       At the hearing, defense counsel argued that all that was required was an assertion
of “wrongdoing by the police based on the fact [that Escobar] says that he did not possess
the drugs, does not know where the drugs came from, the drugs were planted on him. [¶]
Furthermore, the police officers beat him up.”
       The city attorney reiterated the inconsistency between the scenarios that Escobar
provided through defense counsel—either the officers pulled him from his car or he got
out of the car on his own and ran. “It’s not a matter we can keep coming back and
changing the story,” and “we’re asserting the fact that we have two very, very glaringly
inconsistent declarations.”
       The trial court determined that the motion and counsel’s declaration amounted to
“merely a denial. [Escobar] doesn’t really offer any plausible explanation that’s
internally consistent with his first declaration.” The trial court continued: “The second
declaration doesn’t address why these officers just picked [Escobar] out in the parking lot
eating his taco and proceeded to beat him without any probable cause. He does not
explain why drugs are recovered at the location, why drugs are recovered in his pocket at
the time.” “You can’t get over the initial hurdle that you’ve now created an internal
inconsistency with how [Escobar] was removed from the vehicle or got out of the car. So
that’s now internally inconsistent.” Accordingly, the trial court denied the second
Pitchess motion.
       B. Relevant legal principles and standard of review
       “For approximately a quarter-century our trial courts have entertained what have
become known as Pitchess motions, screening law enforcement personnel files in camera
for evidence that may be relevant to a criminal defendant’s defense.” (People v. Mooc
(2001) 26 Cal.4th 1216, 1225, fn. omitted (Mooc)); see Pitchess, supra, 11 Cal.3d 531.)
To balance the defendant’s right to discovery of records pertinent to his or her defense
with the peace officer’s reasonable expectation that his or her personnel records will
remain confidential, the Legislature has adopted a statutory scheme requiring a defendant
to meet certain prerequisites before his or her request may be considered. (See §§ 832.5,
832.7 & 832.8; Evid. Code, §§ 1043-1047 [statutory scheme governing Pitchess

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motions].) Specifically, a defendant seeking discovery of a peace officer’s confidential
personnel record must file a written motion describing the type of records or information
sought (Evid. Code, § 1043) and include with the motion an affidavit demonstrating
“good cause” for the discovery and the materiality of such evidence relative to the
defense. (Mooc, at p. 1226; see also Warrick, supra, 35 Cal.4th at p. 1019.) The
information must be requested with “sufficient specificity to preclude the possibility of a
defendant’s simply casting about for any helpful information.” (Mooc, at p. 1226.)
       Once the trial court concludes the defendant has satisfied these prerequisites, the
custodian of records is obligated to bring to court all documents “‘potentially relevant’”
to the defendant’s motion. (Mooc, supra, 26 Cal.4th at p. 1226.) The trial court must
then examine the information in chambers, outside the presence of any person except the
proper custodian “and any other persons as the person authorized to claim the privilege is
willing to have present.” (Evid. Code, §§ 915, subd. (b), 1045, subd. (b); see Warrick,
supra, 35 Cal.4th at p. 1019.) Subject to certain statutory exceptions and limitations,4 the
trial court must then disclose to the defendant “‘such information [that] is relevant to the
subject matter involved in the pending litigation.’” (Mooc, at p. 1226; Warrick, at
p. 1019.) As the parties here agree, “[a] trial court’s ruling on a motion for access to law
enforcement personnel records is subject to review for abuse of discretion.” (People v.
Hughes (2002) 27 Cal.4th 287, 330; see also People v. Moreno (2011) 192 Cal.App.4th
692, 701; People v. Cruz (2008) 44 Cal.4th 636, 670.)
       Escobar challenges the trial court’s denial of his second motion, arguing that he
established the necessary good cause to review the records of Officers Chang and Beyda.
He argues that he satisfied the “relatively low threshold” for establishing good cause for


4      The trial court must exclude from discovery: “(b)(1) Information consisting of
complaints concerning conduct occurring more than five years before the event or
transaction that is the subject of the litigation in aid of which discovery or disclosure is
sought. [¶] (2) In any criminal proceeding the conclusions of any officer investigating a
complaint filed pursuant to Section 832.5 of the Penal Code. [¶] (3) Facts sought to be
disclosed that are so remote as to make disclosure of little or no practical benefit.” (Evid.
Code, § 1045; see also Mooc, supra, 26 Cal.4th at pp. 1226–1227.)

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an in camera review. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83–
84; Warrick, supra, 35 Cal.4th at p. 1019.)
       We disagree. Looking at all pertinent documents, Escobar did not offer a
consistent theory to support his request to review the officers’ personnel records.
(Warrick, supra, 35 Cal.4th at p. 1025.) Specifically, in the first supporting declaration,
defense counsel asserted that Escobar was singled out and pulled out of his car by the
police officers. In his second declaration, defense counsel asserted that Escobar
voluntarily opened his car door and got out to throw away some trash and ran when he
heard someone order him to “[g]et out of the car.” In ruling on Escobar’s second
Pitchess motion, the trial court exercised its discretion and considered all “‘pertinent
documents,’” including defense counsel’s inconsistent affidavits and the police report.
(Sisson v. Superior Court (2013) 216 Cal.App.4th 24, 31, fn. 3.) Because of the glaring
inconsistency between defense counsel’s declarations, these documents did not establish
a plausible factual foundation for the alleged officer misconduct. (People v. Galan
(2009) 178 Cal.App.4th 6, 11–12.)
       Bolstering our conclusion that the trial court did not abuse its discretion is the fact
that the trial court applied “common sense” in determining that Escobar’s alleged factual
scenario was not plausible, based upon “a reasonable and realistic assessment of the facts
and allegations.” (People v. Thompson (2006) 141 Cal.App.4th 1312, 1318–1319.) In
denying Escobar’s second motion, the trial court noted that Escobar did not “address why
these officers just picked this defendant out in the parking lot eating his taco and
proceeded to beat him without any probable cause.” Although the trial court
acknowledged that Escobar did not need to show motive, it found Escobar’s theory of
some sort of implicit conspiracy among the police officers, without any factual support,
not a “plausible factual scenario.” Given Escobar’s inconsistent versions of what
allegedly occurred at the time of his arrest, coupled with the absence of any explanation
that would support his suggestion of a conspiracy between these two police officers
(People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992), we conclude that the trial court
did not abuse its discretion in denying Escobar’s second motion.

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II. An amended abstract must be issued to reflect the trial court’s order striking
Escobar’s prior prison term enhancement
       Escobar argues that an amended abstract of judgment should be issued, reflecting
that his prior prison term was stricken by the trial court. The People agree.
       At sentencing, the trial court imposed and stayed Escobar’s prior prison term
enhancement within the meaning of section 667.5, subdivision (b). In a letter dated
February 6, 2014, Escobar’s counsel requested that the trial court strike the enhancement.
Counsel further indicates that the trial court responded by issuing an amended minute
order and order modifying his sentence by striking the prior prison enhancement. Now,
the abstract of judgment must be amended to reflect the trial court’s modification and
striking of Escobar’s state prison prior.
                                      DISPOSITION
       The judgment is affirmed. The trial court is directed to amend the abstract of
judgment to reflect its striking of Escobar’s state prison prior.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                    _____________________________, Acting P. J.
                                          ASHMANN-GERST


We concur:



______________________________, J.
           CHAVEZ



______________________________, J.
           HOFFSTADT



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