(Super. Ct. No. F411094) (San Luis Obispo County) Martin J. Tangeman, Judge Superior Court County of San Luis Obispo
The opinion of the court was delivered by: Perren, J.
CERTIFIED FOR PUBLICATION
The procedures attendant to a criminal defendant's right to discover relevant evidence in confidential peace officer personnel files--through the filing of a so-called "Pitchess"*fn1 motion--are established by both statute and decisional law.*fn2 The defining hallmark of the process is an in camera hearing in which the trial court reviews the files at issue outside the presence of the defendant and his or her counsel. The completeness of the records is established through questioning of the custodian of records who produced them. In order to protect the defendant's right to a fair trial, the custodian must be placed under oath. (People v. Mooc (2001) 26 Cal.4th 1216, 1230, fn. 4 (Mooc); Evid. Code, § 710.) In this case we decide whether the trial court's failure to administer the oath in this regard compels a conditional reversal of the judgment. We conclude that it does.
Jamal Charles White appeals the judgment entered after a jury convicted him of possessing marijuana in a jail facility (Pen. Code,*fn3 § 4573.6). In a bifurcated proceeding, the trial court found true allegations that appellant had three prior strike convictions (§§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c)). Appellant was sentenced to a state prison term of 25 years to life, to run consecutive to the prison term he was currently serving.
Although appellant's opening brief raises no claims of error, he asks us to independently review the sealed transcripts of the in camera hearing on his Pitchess motion. In independently reviewing the sealed transcript of the hearing, as we must (see Mooc, supra, 26 Cal.4th at pp. 1229-1232), we discovered that the two custodians of records who testified at the hearing were never placed under oath. Because the custodians were never sworn, the records they produced and their statements relating thereto are not "evidence" that can be considered on appeal. Under the circumstances, there is effectively no record of the Pitchess hearing for us to review. Accordingly, we shall conditionally reverse the judgment and remand for a new hearing in which the oath is administered to the custodians of records before they testify.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On September 30, 2007, appellant was incarcerated at the California Men's Colony. Sometime that morning, he was admitted to the visiting area by Correctional Officer Jeffrey Diaz. Although Officer Diaz did not specifically recall processing appellant that morning, the standard procedure was to verify that the inmate had a visitor, check the inmate's identification, and conduct a patdown search.
At 1:45 p.m., Officer Diaz examined appellant after he exited the visiting area. Pursuant to the standard procedure, the officer searched the visiting area and appellant's clothing, then conducted a strip search of appellant in an adjacent bathroom. After Officer Diaz checked the bathroom to ensure that nothing was already in there, he ordered appellant to bend over, squat, and cough. Appellant bent over but did not squat, and turned his buttocks away from the officer's view. Officer Diaz repeated the command and told appellant to turn his buttocks toward him. After appellant again failed to comply, the officer repeated the command for a third time. As appellant moved his legs to squat, a small package fell from his rectum. Officer Randy Smith examined the package and found it consisted of two condoms wrapped in cellophane that contained 40.85 grams of marijuana and cigarette rolling paper. Officer Smith testified that such packaging was common inside the prison, and that it was also common for inmates to utilize their body cavities to smuggle contraband into the prison from the visiting area.
Appellant testified in his own defense. He claimed the marijuana did not belong to him and that it must have been in the bathroom before he was searched. He also denied disobeying Officer Diaz's orders to bend over and squat, and accused the officer of lying.
The Pitchess Motion and Hearing
Prior to trial, appellant filed a Pitchess motion seeking discovery of complaints and allegations against Officer Diaz regarding "the use of false reports, dishonesty and the planting of drugs to fabricate probable cause." Appellant also requested production of any exculpatory evidence pursuant to Brady v. Maryland (1963) 373 U.S. 83. The motion was based on appellant's representation that Officer Diaz had falsified the charge against him and had either planted the contraband attributed to appellant or knew it belonged to someone else. Appellant sought production of Officer Diaz's personnel records as well as any records maintained on the officer pursuant to section 832.5.*fn4 Appellant specifically requested the following: "(1) IA [Internal Affairs] file; (2) Professional Standards Unit file; (3) Personnel file; (4) Risk Management file; (5) Divisional file; (6) Human Resources file; and (7) any other file maintained by the agency not referenced above containing any personnel information about the officer in question."
The court found that appellant had made the requisite showing of good cause for the requested discovery*fn5 and proceeded to hold an in camera hearing. The sealed transcript of the hearing reflects appearances by two custodians of records: Andrew Pitoniak, Litigation Coordinator for the California Men's Colony, and Suzan Brandt, Personnel Supervisor. Pitoniak and Brandt were accompanied by Deputy Attorney General Ivan Torres, who appeared on behalf of the California Department of Corrections and Rehabilitation (CDCR). At the outset of the hearing, the court stated: "This is on for a Pitchess and Brady motion. . . . [¶] During the course of the hearing, I am going to be reviewing documents on the record, and if I need some explanation . . . of what the documents are, we may go off the record so they can be explained to me, where they came up, rather than clutter up the record." The court then proceeded to hear from Pitoniak, who stated, "[w]e did do a thorough search of all the different files that can be kept on an employee at our institution. The most common is the personnel file, which we did bring here. [Appellant's] attorney listed a bunch of files that don't exist in our realm of the CDCR, so I really wasn't sure what exactly he was after on some of these issues." Pitoniak added that the only such file that existed was an internal affairs file, which did not contain any information regarding Officer Diaz. Pitoniak also stated that other files that might have been relevant to the request had been searched and that no information regarding Officer Diaz had been found. After further questioning by the court, Pitoniak reiterated that no information regarding Officer Diaz had been found other than his personnel file, which Pitoniak described as "extremely thin."
The court proceeded to question Brandt regarding the contents of Officer Diaz's personnel file. With Brandt's assistance, the court went through each document in the file and determined that none of them contained discoverable information. At the conclusion of the hearing, the court stated, "So having gone through all of these things, there's actually nothing to turn over under either Pitchess or Brady and their line of cases. [¶] So the transcript[s] of these proceedings are ordered sealed at this time, as I ...