Filed 11/5/15 P. v. Lara CA2/2
                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 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,                                                             B258303

           Plaintiff and Respondent,                                     (Los Angeles County
                                                                         Super. Ct. No. MA061812)
           v.

 HECTOR MANUEL LARA,

           Defendant and Appellant.




           APPEAL from a judgment of the Superior Court of Los Angeles County.
 Kathleen Blanchard, Judge. Affirmed in part, conditionally reversed, and remanded in
 part with directions.
           Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and
 Appellant.
           Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
 General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson,
 Supervising Deputy Attorney General, and Idan Ivri, Deputy Attorney General, for
 Plaintiff and Respondent.


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       A jury convicted Hector Manuel Lara (defendant) of possessing
methamphetamine, and the trial court sentenced him to six years in jail. On appeal,
defendant argues that the trial court erred in conducting too narrow a review of three Los
Angeles County Sheriff’s deputies’ personnel records under Pitchess v. Superior Court
(1975) 11 Cal.3d 531 (Pitchess), and in sentencing him to the middle term. Although
defendant’s second claim lacks merit, we agree with him that the trial court’s Pitchess
review did not encompass all “similar” misconduct as Pitchess requires. We accordingly
remand for a further Pitchess hearing.
                 FACTUAL AND PROCEDURAL BACKGROUND
       A busboy at a Denny’s restaurant in Lancaster, California, called law enforcement
because defendant, a customer, was acting “weird”: Defendant looked around the
restaurant nervously when opening his wallet, walked out to the parking lot and
proceeded to talk to himself, and then returned and started looking under tables. Two
Los Angeles County Sheriff’s deputies arrived. When the officers encountered defendant
outside the restaurant, one of them noticed that defendant was fidgety, that his pupils
were dilated, that his speech was rambling and incoherent, and that he was sweating
profusely despite an air temperature a few degrees above freezing. The deputies arrested
defendant, and the busboy then brought them the wallet defendant had left in the
restaurant. The wallet contained a “picture ID” with defendant’s photograph as well as a
folded square of paper containing 3.2888 grams of methamphetamine.
       The People charged defendant with possessing methamphetamine (Health & Saf.
Code, § 11377, subd. (a)). The People further alleged that defendant’s 1997 conviction
for robbery (Pen. Code, § 211) was a “strike” under California’s Three Strikes Law (id.,
§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)), and that he served two additional prior
prison terms (id., § 667.5, subd. (b)) for his 2004 conviction for receiving a stolen vehicle
(id., § 496d, subd. (a)) and his 2011 conviction for false imprisonment (id., § 236).
       After the jury convicted defendant and defendant admitted the prior convictions
during the second half of the bifurcated trial proceedings, the trial court sentenced

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defendant to six years in jail. The court selected the middle term of two years on the
possession count, doubled it to four years due to defendant’s prior “strike,” and added
one additional year for each prior prison sentence.
       Defendant timely appeals.
                                       DISCUSSION
I.     Pitchess Motion
       A.     Pertinent facts
       Prior to trial, defendant filed a Pitchess motion seeking in camera review of the
personnel records and citizen complaints against the two deputies who arrested him and a
third deputy who photographed the wallet and drugs. Defendant’s counsel submitted a
declaration, based on information and belief, denying that defendant exhibited any signs
of drug use, denying that defendant possessed any methamphetamine, and asserting that
the deputies either “plant[ed] [the] methamphetamine in [his] wallet or else l[ied] about
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its having been there altogether.” Defendant asked the trial court to review the records
and complaints for any evidence of (1) fabrication of charges, (2) fabrication of evidence,
(3) fabrication of reasonable suspicion and/or probable cause, (4) perjury, (5) dishonesty,
(6) writing false police reports, (7) filing false or misleading reports (such as false
overtime and medical reports), and (8) any other misconduct involving moral turpitude.
       The trial court granted the motion as to all three deputies, but only as to the
“planting of narcotics and writing of false police reports.” The court conducted an in
camera review and found no responsive records or complaints. After the court denied the
Pitchess motion, defendant filed—and the court denied—a motion to suppress the
methamphetamine as the fruit of an unlawful arrest.
       B.     Analysis
       The “personnel records” of “peace” and “custodial officers,” as well as
“complaints by members of the public,” are conditionally privileged under California


1      This was counsel’s second declaration. The trial court had denied defendant’s first
Pitchess motion without prejudice due to the insufficiency of counsel’s first declaration.
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law. (Pen. Code, §§ 832.7, 832.5, 832.8.) They are not wholly immune from disclosure;
instead, they may be disclosed but only if the party seeking them follows special
procedures first articulated in Pitchess and later codified in Evidence Code sections 1043
through 1047. Under these procedures, a court must find “good cause for the discovery
or disclosure”—that is, a showing that the agency from which the records and complaints
are sought possesses them and, more relevant here, a showing that the records and
complaints are “material[] . . . to the subject matter involved in the pending litigation.”
(Evid. Code, § 1043, subd. (b)(3).) To establish materiality, the requesting party must
(1) set forth a “specific” and “plausible” “factual scenario of officer misconduct,” and
(2) must explain both how the information sought is “similar” to the misconduct alleged
in the pending litigation and how the information would support a defense or negate the
People’s case. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021, 1025-1027
(Warrick); California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010,
1021 (CHP).)
       Defendant raises two issues on appeal. First, he asks us to evaluate the sufficiency
of the in camera hearing that the trial court conducted. We have done so, and conclude
that it was done correctly. (People v. Mooc (2001) 26 Cal.4th 1216, 1229.) Second, he
argues that the court should have conducted a more expansive in camera hearing. In
particular, defendant asserts that the court erred in limiting the in camera review only to
misconduct involving the “planting of narcotics and writing of false police reports”
because most of the other types of misconduct he sought to discover (namely, the
fabrication of evidence, the fabrication of charges, the fabrication of reasonable suspicion
or probable cause, perjury and dishonesty) are also “similar” to the misconduct he alleges
in this case (namely, the planting of methamphetamine and the filing of a false police
report). Defendant does not on appeal challenge the court’s ruling regarding false or
misleading internal reports or other misconduct involving moral turpitude. We review
the court’s decision in this regard for an abuse of discretion. (People v. Cruz (2008) 44
Cal.4th 636, 670.)

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       We conclude that the trial court abused its discretion. Pitchess requires the in
camera review of a peace officer’s privileged file for misconduct that is “similar” or
“related” to the misconduct the defendant alleges, not just misconduct that is identical to
it. (CHP, supra, 84 Cal.App.4th at p. 1021 [“similar”]; People v. Gill (1997) 60
Cal.App.4th 743, 750 (Gill) [same]; Warrick, supra, 35 Cal.4th at p. 1021 [requiring
“officer misconduct related to the misconduct asserted by the defendant”]; cf. People v.
Hustead (1999) 74 Cal.App.4th 410, 416 [prior incidents of excessive force not similar to
alleged misconduct in lying about defendant’s evasive driving].) There is good reason
for this: Incidents that are similar, but not identical, can lead to admissible evidence of an
officer’s “habit or custom” of engaging in that type of misconduct. (Gill, supra, 60
Cal.App.4th at pp. 749-750; People v. Memro (1985) 38 Cal.3d 658, 681-682, overruled
on other grounds by People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2 (Gaines).)
       Using “similarity” as the filter, the trial court erred in not reviewing the personnel
records of the three deputies for prior incidents involving (1) the planting or fabrication
of any evidence (rather than just narcotics) (see Warrick, supra, 35 Cal.4th at p. 1027 [in
cocaine possession case, ordering in camera review of records involving “planting of
evidence”]; Gill, supra, 60 Cal.App.4th at p. 750 [same]), (2) the fabrication of charges to
the extent it relies upon the fabrication of evidence (see Gill, at p. 750), (3) perjury (see
Brant v. Superior Court (2003) 108 Cal.App.4th 100, 108 (Brant) [in drug possession
case where defendant alleges officers lied, ordering in camera review of records for
perjury]), and (4) dishonesty (see People v. Johnson (2004) 118 Cal.App.4th 292, 296,
300-303 [in drug possession case where defendant alleges officers lied, ordering in
camera review of records for incidents of dishonesty]; cf. CHP, supra, 84 Cal.App.4th at
p. 1023 [in driving under the influence case where defendant alleges officers lied,
misconduct involving time card irregularities not sufficiently similar]). What is more, in
light of defendant’s motion to suppress on the grounds that the deputies fabricated
probable cause for his arrest, prior incidents involving the fabrication of reasonable
suspicion and probable cause are also “similar” and thus subject to in camera review.

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(Brant, at p. 108; cf. Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 317-321
[in camera review of prior incidents of fabrication of probable cause not warranted when
arrest rested on independent basis not attacked by defendant].)
       The People defend the trial court’s ruling on two grounds. They argue that CHP
supports the court’s parsing of what is similar from what is not. CHP is distinguishable.
The dissimilarity between the alleged misconduct and time card irregularities in CHP is
greater than the dissimilarities between the alleged misconduct in this case and the
categories of prior misconduct for which defendant seeks in camera review in this case,
as we explain above. The People further contend that Warrick’s ruling that Pitchess
review be conducted for “the planting of evidence” generally (rather than the planting of
specific types of evidence) was an instruction to the trial court after that court initially
refused to conduct any in camera review at all, and should be limited to that
circumstance. However, Warrick grounded its ruling on its conclusion that evidence is
“material” under Evidence Code section 1043, subdivision (b)(3) if it is “similar[]” or
“related” to the misconduct alleged in the Pitchess motion. As noted above, many other
courts have construed “materiality” the same way. More importantly, the People offer no
reason why we should adopt a different definition of “similarity” depending on the
degree to which the trial court’s initial ruling was underinclusive (that is, depending on
whether the court conducted an in camera review that was too narrow or no in camera
review at all).
       We do not at this point reverse defendant’s conviction. Instead, we conditionally
remand the matter to the trial court to (1) conduct an in camera review of the privileged
records and complaints of all three deputies for all of the five additional categories of
misconduct enumerated in this opinion, (2) order the disclosure of any “information . . .
relevant to the subject matter involved in the pending litigation” (Evid. Code, § 1045,
subd. (a)), and, if any such records are disclosed, (3) allow defendant the opportunity to
establish there is a reasonable probability that the outcome of his suppression motion or
trial would have been different and, if so, to retry the case. If there are no additional

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disclosures or if defendant cannot establish prejudice, the trial court may reinstate the
judgment of conviction. (Gaines, supra, 46 Cal.4th at p. 182; Gill, supra, 60 Cal.App.4th
at p. 419.)
II.    Sentencing
       A person convicted of possessing methamphetamine and having a prior “strike”
offense may be sentenced to 16 months, 2 years or 3 years in jail. (Health & Saf. Code,
§ 11377, subd. (a); Pen. Code, § 1170, subd. (h)(1).) Where, as here, “the statute
specifies three possible terms [of imprisonment], the choice of the appropriate term shall
rest within the sound discretion of the [trial] court.” (Pen. Code, § 1170, subd. (b);
People v. Sandoval (2007) 41 Cal.4th 825, 847 [noting abuse of discretion review on
appeal].) A trial court abuses that discretion if, in choosing among the low, middle and
high terms, it relies upon facts or circumstances that are irrelevant or prohibited. (Ibid.)
       Defendant argues that the trial court erred in selecting the middle term of two
years on the underlying drug possession charge because (1) the court relied on two
inappropriate considerations, and (2) the court did not “state the reasons” for its selection
of the middle term “on the record at the time of sentencing,” as required by Penal Code
section 1170, subdivision (c). Neither argument warrants reversal.
       With respect to the first argument, defendant asserts that the trial court
impermissibly (1) treated his decision to go to trial (rather than enter a plea) as an
aggravating factor in violation of his constitutional right to go to trial (see People v.
Weber (1984) 162 Cal.App.3d Supp. 1, 8 [“A court cannot impose a harsher sentence
because the defendant pleads not guilty and exercises his right to a jury trial”]); and
(2) treated his trial testimony denying possession of drugs as perjury—and thus, an
aggravating factor—without first making a finding as to the elements of perjury (see
People v. Howard (1993) 17 Cal.App.4th 999, 1002, 1004 [so requiring]).
       The record and the law do not support these arguments. At the sentencing hearing,
defendant asked for the low term (or, failing that, the middle term), and the People sought
a high term sentence. The trial court selected the middle term. Just minutes before, in

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denying defendant’s motion to strike his prior “strike” conviction, the court noted
defendant’s extensive criminal history, including the four felony convictions he sustained
between his 1997 robbery conviction and the instant offense. The court also explained
why there were no mitigating factors: “There aren’t any factors in mitigation that I see
certainly in terms of your plea negotiations. Early taking of responsibility is a factor in
mitigation under the rules of court. [¶] Here, not only did we not have that but we did
have the defendant who took the stand and was unwilling to take responsibility for the
crime here.”
       As the trial court’s actual words indicate, the court did not punish defendant for
going to trial; instead, it acknowledged the absence of the mitigating factor of acceptance
of responsibility. (See Cal. Rules of Court, rule 4.423, subd. (b)(3) [mitigating factors
include “[t]he defendant voluntarily acknowledg[ing] wrongdoing before arrest or at an
early stage of the criminal process”].) The court also did not determine that defendant
committed perjury, so findings as to the elements of perjury are not necessary.
Moreover, the criminal history the court discussed is a valid aggravating factor (id., rule
4.421, subd. (b)(2) [aggravating factors include that “the defendant’s prior
convictions . . . are numerous or of increasing seriousness”]), and a single aggravating
factor is sufficient to sustain a middle or high term sentence (e.g., People v. Williams
(1991) 228 Cal.App.3d 146, 153).
       Defendant’s attack on the trial court’s statement of reasons also lacks merit. To
begin, the court’s articulation at the hearing of aggravating factors and its finding of no
mitigating factors are reasonably viewed as a statement of reasons for its middle term
sentence. Even if we assume that a more express statement is required, defendant
forfeited his right to that statement by not objecting during the sentencing hearing.
(People v. Scott (2015) 61 Cal.4th 363, 406.) Defendant argues that this forfeiture is due
to his counsel’s ineffectiveness, which itself warrants a new sentencing hearing. (See
Strickland v. Washington (1984) 466 U.S. 668, 687.) We disagree. Strickland requires a
showing that, but for counsel’s deficient performance, it is reasonably probable that the

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outcome of the proceeding would be different. (Ibid.) Defendant has not made this
showing because the court’s discussion of aggravating and mitigating factors made its
choice among the three sentencing options clear.
                                      DISPOSITION
       The judgment is reversed and remanded with directions to the trial court to
conduct an in camera hearing as to all three deputies with respect to prior incidents of
(1) the planting or fabricating of any evidence, (2) the fabrication of charges to the extent
it relies upon the fabrication of evidence, (3) perjury, (4) dishonesty, and (5) the
fabrication of reasonable suspicion and probable cause. If the hearing reveals no
discoverable information, the trial court is directed to reinstate the judgment of
conviction and the sentence. If the inspection reveals relevant information, the trial court
must order disclosure, allow defendant an opportunity to demonstrate prejudice, and
order a new trial if there is a reasonable probability the outcome would have been
different had the information been disclosed. In all other respects, the judgment is
affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                                          _______________________, J.
                                                                HOFFSTADT
We concur:

____________________________, P.J.
           BOREN

____________________________, J.
      ASHMANN-GERST




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