Filed 8/27/20 P. v. Salas CA2/1
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                        DIVISION ONE


 THE PEOPLE,                                                    B295563

           Plaintiff and Respondent,                            (Los Angeles County
                                                                Super. Ct. No. KA117671)
           v.

 GERRARDO SALAS,

           Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
Angeles County, Steven D. Blades, Judge. Judgment
conditionally reversed and remanded with directions.
      Kiran Prasad, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.

                                 _______________________
      Defendant Gerrardo Salas appeals the judgment entered
following his conviction by jury of fleeing a pursuing peace officer
while driving recklessly (Veh. Code, § 2800.2) and hit and run
driving resulting in property damage (Veh. Code, § 20002,
subd. (a)). The sole issues on appeal1 concern the trial court’s
handling of Salas’s motions for discovery of police personnel
records under the doctrines of Brady v. Maryland (1963) 373 U.S.
83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (Brady), People v. Superior
Court (Johnson) (2015) 61 Cal.4th 696, 721, and Evidence Code
sections 1043 and 1045 (Pitchess2 motion). We have jurisdiction
under Penal Code section 1237.

                    FACTUAL BACKGROUND
      On October 14, 2017, Pomona Police Department (PPD)
Officer Thomas De La Vega was on patrol. Officer De La Vega
was driving slowly, using a spotlight to illuminate vehicles in the
area. At around 11:25 p.m., a Ford Explorer drove past him in
the opposite direction. Officer De La Vega shone his spotlight
into the car, and saw the driver. The driver was wearing a blue
tank top and had tattoos on his neck and left arm. The driver
and the officer were approximately five feet apart when the Ford
Explorer drove past Officer De La Vega.



      1 Salas’sopening brief also included a challenge to
sentencing enhancements based on prior felony convictions, but
that issue was addressed in a separate habeas corpus proceeding,
case No. B303833, in which this court ordered the trial court to
strike the enhancements. Salas has withdrawn this issue from
the present appeal.
      2   Pitchess v. Superior Court (1974) 11 Cal.3d 531.




                                  2
       Shortly after the Ford Explorer drove past him, Officer De
La Vega looked in his rear-view mirror and noticed that it failed
to stop at a stop sign as it made a right turn from Laurel Avenue
onto Dudley Street heading northbound. Officer De La Vega
made a U-turn and pursued the Ford Explorer to conduct a traffic
stop for the moving violation. As he did so, Officer De La Vega
noticed another patrol vehicle already driving northbound on
Dudley Street. PPD Officer Bennett was driving the other patrol
vehicle. Officer Bennett activated his lights and siren and
followed the Ford Explorer.
       Initially, the Ford Explorer started to pull over. It then
took off down the roadway, running through a stop sign. The
officers pursued the vehicle as it drove through more stop signs,
crossed over onto the wrong side of the road moving at a high
speed, and ultimately crashed into a tree in the front yard of a
house. Officer De La Vega radioed dispatch, informing them that
he was terminating pursuit as the vehicle had crashed. The
driver fled the crashed Ford Explorer. The police conducted a
search for the driver, but were unable to locate him. In his
conversation with dispatch, Officer De La Vega described the
driver as “Hispanic, tank top, tattoos on arm.”
       After the crash, Officer Bennett notified Officer De La Vega
that he had found some Polaroid photographs in the Ford
Explorer. Officer De La Vega immediately identified the person
in the pictures, Salas, as the driver of the car. Officer De La
Vega ran the license plate and determined that Salas was the
owner of the Ford Explorer.
       Salas took the stand and claimed that he was not the driver
of the Ford Explorer during this incident. Salas testified that he
had purchased the vehicle from a private seller two weeks earlier,




                                3
and a release of liability dated October 3, 2017, was on file with
the DMV. Salas had not yet formally registered the vehicle in his
name. He further testified that the Ford Explorer had been
stolen earlier that same evening while he was at a friend’s house.
Accordingly, he was not driving the Ford Explorer on the night of
October 14, 2017. He further testified that he did not report the
car stolen that night. Rather, he reported it stolen the following
day, October 15, 2017, to the Pomona police station. Salas
acknowledged that he had five prior felony convictions.
       Officer De La Vega was recalled by the prosecution as a
rebuttal witness. He testified that he had contacted both the
Pomona and Montclair police departments. Neither had any
record of a report by Salas of a stolen vehicle.
       The jury deliberated and returned verdicts of guilty on both
counts. Salas was sentenced to three years on the first count
(fleeing a pursuing peace officer’s motor vehicle while driving
recklessly in violation of Veh. Code, § 2800.2) and a consecutive
six months on the second count (hit and run driving resulting in
property damage in violation of Veh. Code, § 20002, subd. (a)).

                         DISCUSSION
      Salas’s contentions on appeal center on the handling of a
series of efforts by his defense counsel to obtain personnel file
and related information concerning the key prosecution witness,
Officer De La Vega.3 Officer De La Vega was the sole witness


      3  Salas also challenges the trial court’s failure to grant
Pitchess/Brady motions directed to the records of the second
officer, Officer Bennett. We agree with the trial court that Salas
failed to demonstrate that the records of Officer Bennett would
contain information material to this case, and find there was no




                                 4
providing direct testimony that put Salas behind the wheel of the
fleeing vehicle; thus, defense counsel plausibly asserted that
information that might challenge Officer De La Vega’s credibility
could be material. We will review the chronology of these efforts,
and then examine the trial court’s compliance with applicable
standards.
A.     The Brady and Pitchess Motions
       1.      Salas’s Initial Motion
       On May 17, 2018, Salas’s counsel filed a notice of motion for
discovery of Brady information in a police personnel file. A
hearing date of June 14, 2018 was set. The PPD, as real party in
interest, opposed the motion.
       The hearing on this motion took place on June 14, 2018
before Judge Steven D. Blades. From this hearing it emerged
that the prosecutor’s office had previously sent an email to
defense counsel stating, “In a previous case, [No.] KA115596, the
court granted the defense’s Pitchess motion as to Officer Thomas
De La Vega.” This information derived from an automatic check
performed by the district attorney’s discovery compliance unit
whenever a police officer is subpoenaed to testify. The prosecutor
did not have any further information about what transpired in
the other case, nor what, if any, information was actually
disclosed in that case. Though the deputy district attorney had
not specifically referred to Brady in this email, the defense
attorney inferred that there might be Brady material in the
officer’s file.



abuse of discretion in denying the motions relating to Officer
Bennett. (See People v. Samayoa (1997) 15 Cal.4th 795, 827.)




                                 5
      After extensive colloquy, the trial court observed: “[T]he
argument by the defense is that Officer De La Vega falsified his
identity of [Salas], or lied, or whatever. . . . So it seems to me
that the fair thing to do, since nobody knows whether this is
Brady material or not, is for me to look at it in camera to decide
whether it is Brady material. That way nobody is guessing and—
I think that’s the fair thing to do. . . . At this point I’m going to
grant the motion to review the records in camera.”
      The court then conducted in camera proceedings to review
the material provided by the PPD. These proceedings were
recorded stenographically and the transcript sealed. In these
proceedings, the court describes the material being reviewed.
      Significantly, during the in camera proceedings, the court
advised the custodian of records that it intended to review only
the particular item that had been the subject of the Pitchess
proceedings in the other case. The court specifically stated that it
was not treating this motion as a Pitchess motion. From what the
record indicates, the court did not review any other contents of
Officer De La Vega’s personnel records apart from the one item
that was the subject of the Pitchess motion in the other case.
After reviewing this item, the court stated the intention to inform
the defense that after reviewing the file, there is no Brady
material present.
      On returning to the bench, the court announced: “I have
conducted an in camera review of the information supplied to the
defense by [the prosecutor], and without making any comments
about the reason this was disclosed in another case, I don’t see
anything remotely relevant to Brady, or even Pitchess, with
regard to this case. There’s just nothing in there. I’ll just leave it
at that. There’s just nothing in there. That’s it.”




                                  6
       2.    Salas’s Second Motion
       A preliminary hearing was held on July 12, 2018, at which
the prosecution called Officer De La Vega to testify. Officer De
La Vega indicated that he had gotten a good look at the driver of
the Ford Explorer as the vehicles passed one another, and
identified Salas as the driver. Officer De La Vega further
testified that he recognized Salas from photographs that were
found in the Ford Explorer after the crash. The court found that
offenses had been committed and there was sufficient evidence to
hold Salas to answer for them.
       On July 18, 2018, Salas’s counsel filed a new “motion for
pretrial discovery including civil service commission (Pitchess and
Brady).” This motion requested wide-ranging information
concerning both Officer De La Vega and Officer Bennett.4 The
PPD, as real party in interest, again opposed the motion.



      4 The   requested information included the following:
      “(1) All complaints from any and all sources relating to
acts of violation of constitutional rights, fabrication of charges,
fabrication of evidence, fabrication of reasonable suspicion and/or
probable cause, false arrest, perjury, dishonesty, writing of false
police reports, planting of evidence, false or misleading internal
reports including but not limited to false overtime or medical
reports, and any other evidence of misconduct amounting to
moral turpitude within the meaning of People v. Wheeler (1992) 4
Cal.4th 284 against Officers W. Bennett . . . and T. De La
Vega . . . . [¶] . . . [¶] . . .
      “(3) Any other material which is exculpatory or impeaching
within the meaning of Brady . . . .
      “(4) The names, addresses, contact information, and
transcripts of testimony of all persons who testified at any Civil
Service Commission hearing(s) wherein the named officers were




                                7
       The hearing on this second motion took place on August 24,
2018, before Judge Thomas C. Falls. There was extensive
colloquy with defense counsel as to whether good cause existed
for granting review of either officer’s records. Most important for
our purposes, it is apparent that Judge Falls was not aware of
the limitation that Judge Blades had put on his review at the
May 17, 2018 hearing, namely, that he only would review the one
specific item that had been disclosed in the Pitchess motion in the
other case. Rather, Judge Falls, in recounting his understanding
of the May 17, 2018 hearing, clearly believed that Judge Blades
had looked at all of the personnel records for Officer De La Vega:
       “The Court: Maybe I’m not explaining myself properly, and
that’s entirely possible. With regard to judicial economy, the
court went in. Can we agree you were there?
       “[Defense Counsel]: Yes.
       “The Court: The city attorney was there. The court took
the city attorney and custodian of records back into chambers.
Correct?
       “[Defense Counsel]: Yes.
       “The Court: I think that’s a fair assumption. They looked
through not only complaints, but they looked through personnel
records because it was more expansive. Correct?
       “[Defense Counsel]: I would imagine so. They did go back
there.
       “The Court: Your complaint would be on a writ with the
appellate court with what Judge Blades did. I don’t think he did
anything inappropriate. I don’t think he did anything wrong. I
think he’s fairly well recognized as an expert in Pitchess, but my

accused of any of the misconduct sought in items 1 and 3,
above. . . .”




                                 8
point is, what could possibly he have looked at that wouldn’t have
covered anything you want in here? In other words, it’s—you’ re
seeking the same thing from a different court.” (Italics added.)
       This belief on the part of Judge Falls carried over into his
final ruling on this second motion: “[Y]ou’ve already had a
Pitchess [motion] on [Officer] De La Vega. . . . You got it granted,
and the court went in and did a thorough look because I have no
reason to doubt that Judge Blades did exactly what he should
have done and looked not only at the complaints but at the
personnel file to find any Brady material whatsoever and came
back and had nothing. . . . What I see in front of me, one, as to
[Officer] De La Vega has already been run. This is a second bite
at the apple. It’s denied for that reason.” (Italics added.)
       3.     Salas’s Third Motion
       On September 28, 2018, Salas’s defense counsel filed a
third motion, notice of motion for pretrial discovery including
civil service commission (Pitchess and Brady). This motion was
substantially identical to the second motion, except that
additional statements concerning the disclosure leading to the
May 17, 2018 hearing were added to defense counsel’s supporting
declaration. The PPD again opposed the motion.
       The hearing on this third motion was again assigned to
Judge Falls and took place on October 25, 2018. The court again
denied the motion, again based on the court’s apparent belief that
a full Pitchess review had already been performed: “I believe a
finding was made. The file was reviewed for purposes of Brady,
which, oddly enough, would have encompassed the materials
sought in the Pitchess [motion] even though we treat it
differently. Nothing was disclosed because there was nothing to
be found. . . . I don’t find that the declaration submitted by




                                 9
[defense counsel] is sufficient. Pitchess [motion] is denied, and
this is the third try at it, so I’m denying this with prejudice.”
B.     The Trial Court’s Handling of These Motions
       “When a party brings a Pitchess motion, the trial court is
required to keep a record of what it reviewed to provide
meaningful appellate review.” (People v. Superior Court
(Johnson), supra, 61 Cal.4th at p. 719.) In this case, the record is
adequate for our review, but it reveals a gap that needs to be
addressed with respect to Officer De La Vega. Before considering
this issue, however, there are two matters where we find no fault
with the trial court’s handling of these motions.
       First, based on the record made of the first motion
(including the sealed transcript, which we have reviewed), we are
satisfied that the particular document examined by Judge Blades
in the first motion (the document disclosed in a previous
unrelated case) would not have been material to this case, and
need not have been disclosed.
       Second, we are satisfied that neither the second nor third
motions demonstrated good cause to examine the records of
Officer Bennett, whose role in the events here was not material to
the prosecution’s case or Salas’s defense. Significantly, unlike
Officer De La Vega, there had been no notification by the
prosecutor to defense counsel that Officer Bennett’s file might
contain Brady information. This immediately distinguishes his
situation from the one addressed in Serrano v. Superior Court
(2017) 16 Cal.App.5th 759, where such notice had been given.5


      5“The prosecutor’s notice to [the defendant] that [the
deputy’s] personnel file contains potential Brady material,
together with counsel’s declaration explaining that [the deputy] is




                                10
In addition, Salas failed to establish a plausible factual
foundation for a putative defense that would make Officer
Bennett’s personnel records material for Pitchess purposes.
(People v. Thompson (2006) 141 Cal.App.4th 1312, 1316.) Officer
Bennett’s police report of this incident stated that Officer De La
Vega had told him that he (De La Vega) had seen Salas fleeing
from the vehicle after it crashed. Officer De La Vega testified
that he did not make that statement to Officer Bennett, and its
appearance in Officer Bennett’s report was apparently the result
of miscommunication. Salas furnished no plausible defense
involving Officer Bennett that could be based on this discrepancy.
Thus, Judge Falls was well within his discretion in denying the
second and third motions as to Officer Bennett. (People v.
Samayoa, supra, 15 Cal.4th at p. 827.)
      We are, however, concerned about the handling of the three
motions, taken together, with respect to the examination in
camera of Officer De La Vega’s personnel records. The record
shows three things:
      (1) The only aspect of Officer De La Vega’s personnel
records that was ever examined by the trial court in camera was
the single item that had previously been identified in response to
a Pitchess motion in a different criminal case.
      (2) No other matters in Officer De La Vega’s records were
ever examined in camera. The sealed transcript from the first


the prosecution’s sole witness to many of the events leading to
[the defendant’s] arrest, is sufficient to establish his claim that
[the deputy’s] file contains potential impeachment evidence that
may be material to his defense. Nothing more is required to
trigger the trial court’s in camera review.” (Serrano v. Superior
Court, supra, 16 Cal.App.5th at p. 778.)




                                 11
motion makes that clear as to the first motion. Nothing in the
record indicates that any further examination in camera was
made at any subsequent time. The next two motions were denied
without any additional examination being performed.
       (3) The trial court handling the second and third
Pitchess/Brady motions plainly had the mistaken belief that all
of Officer De La Vega’s relevant records had been examined by
the judge in connection with the first motion. This was
specifically articulated as a ground for denying the second and
third motions.6 Such examination had not, however, been
performed by the trial court.
      “A criminal defendant, on a showing of good cause, is
entitled to discovery of information in the confidential personnel
records of a peace officer when that information is relevant to
defend against a criminal charge.” (People v. Gaines (2009) 46
Cal.4th 172, 176.) The trial court’s ruling on a motion to discover
police officers’ personnel records is reviewed for abuse of
discretion (People v. Hughes (2002) 27 Cal.4th 287, 330), and
denial of such a motion may be found harmless where “extensive


      6 With the benefit of hindsight, if Judge Blades had made
clear in the public record the limited scope of his review as part of
the first motion or alternatively treated the first motion as a
Pitchess motion and therefore reviewed the remaining personnel
records for Officer De La Vega that the PPD’s custodian
apparently had with him that day, events would likely have
unfolded differently. But hindsight is always 20/20. Because the
first motion was aimed specifically at the item that Judge Blades
actually reviewed, his limited review is understandable in the
context of that motion. It did, however, lead Judge Falls to make
the incorrect assumption that Judge Blades’s review was more
extensive than it actually was.




                                 12
evidence” links the defendant to the crime. (People v. Samuels
(2005) 36 Cal.4th 96, 110.)
       In this case, the jury’s verdict indicates that it must have
credited Officer De La Vega’s testimony identifying Salas as the
driver of the Ford Explorer, and did not believe Salas’s testimony
that he was not the driver. Combined with the circumstantial
evidence that the Ford Explorer belonged to Salas (which Salas
did not dispute), there was ample evidence for the jury’s verdict.
       However, Officer De La Vega’s eyewitness testimony was
the key evidence linking Salas to the Ford Explorer. The trial
judge who considered the first motion seeking review of Officer
De La Vega’s personnel records found sufficient good cause to do
so. Hence, we cannot assume that it was harmless error to deny
the review of Officer De La Vega’s remaining records as sought in
the second and third motions. This is not to suggest that there
may actually be anything in those records that would have
merited disclosure pertinent to this case. On the record before
us, we simply cannot tell because the trial court reviewed a
limited record.
       The California Supreme Court has provided guidance as to
the appropriate course for us to take here. In People v. Gaines,
supra, 46 Cal.4th at p. 180, the court explained: “[T]he proper
remedy when a trial court has erroneously rejected a showing of
good cause for Pitchess discovery and has not reviewed the
requested records in camera is not outright reversal, but a
conditional reversal with directions to review the requested
documents in chambers on remand. [Citation.] ‘[Penal Code
s]ection 1260 evinces a “legislative concern with unnecessary
retrials where something less drastic will do.” [Citation.]
“[W]hen the validity of a conviction depends solely on an




                                13
unresolved or improperly resolved factual issue which is distinct
from issues submitted to the jury, such an issue can be
determined at a separate post-judgment hearing and if at such
hearing the issue is resolved in favor of the People, the conviction
may stand.” [Citation.] In other words, “when the trial is free of
prejudicial error and the appeal prevails on a challenge which
establishes only the existence of an unresolved question which
may or may not vitiate the judgment, appellate courts have, in
several instances, directed the trial court to take evidence,
resolve the pending question, and take further proceedings giving
effect to the determination thus made.” [Citation.]’ [Citation.]”
       Accordingly, “when a trial court has failed to review the
Pitchess documents at all, it is appropriate to remand the case to
permit the trial court to review the requested documents in
chambers and to issue a discovery order, if warranted.” (People v.
Gaines, supra, 46 Cal.4th at p. 181.) If, after reviewing the
confidential materials in chambers, the trial court determines
that the requested personnel records contain no relevant
information, the judgment should be reinstated. (Ibid.) If the
trial court determines on remand that relevant information exists
and should be disclosed, “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.’ ”
(Id. at p. 181; see also id. at p. 182 [“To obtain relief, then, a
defendant who has established that the trial court erred in
denying Pitchess discovery must also demonstrate a reasonable
probability of a different outcome had the evidence been
disclosed”].) (See People v. Moreno (2011) 192 Cal.App.4th 692,




                                14
703; People v. White (2011) 191 Cal.App.4th 1333, 1341-1342;
People v. Wycoff (2008) 164 Cal.App.4th 410, 416.)

                        DISPOSITION
       The judgment is conditionally reversed. The case is
remanded to the trial court with directions to hold an in camera
hearing on Salas’s Pitchess/Brady motion with respect to officer
De La Vega in conformance with the procedures described in this
opinion. The trial court shall make a proper record of the
documents reviewed, by either retaining a copy of the documents
(to be maintained under seal) or preparing a detailed description
of the documents (also maintained under seal) that will permit
appellate review of all documents produced for inspection. If the
court finds that new disclosures should be made, the disclosures
shall be made, and the court shall permit Salas the opportunity




                               15
to demonstrate prejudice and may grant a new trial if the
requisites for such an order are met. If the court finds that no
information was discoverable or that Salas cannot demonstrate
such prejudice, the court shall reinstate the judgment of
conviction and sentence.
      NOT TO BE PUBLISHED



                                          SINANIAN, J.


We concur:



             CHANEY, J.



             BENDIX, Acting P. J.




      * Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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