IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT San Joaquin
January 21, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MATTHEW DOUGLAS WHITE, DEFENDANT AND APPELLANT.
Super. Ct. No. LF009183A
The opinion of the court was delivered by: Raye, P.J.
P. v. White CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Matthew Douglas White, while intoxicated and speeding, hit a car stopped on the shoulder of the highway with its hazard lights on, killing its occupant and injuring two passengers in defendant's car. A jury convicted defendant of second degree murder (Pen. Code, § 187); gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)); driving under the influence, causing injury (Veh. Code, § 23153, subd. (a)) and driving with a blood alcohol level of .08 percent or higher, causing injury (Veh. Code, § 23153, subd. (b)), both with three enhancements for causing great bodily injury (Pen. Code, § 12022.7, subd. (a)) and one for inflicting great bodily injury on multiple victims (Veh. Code, § 23558); driving with a suspended license (Veh. Code, § 14601.1, subd. (a)); exhibition of speed (Veh. Code, § 23109, subd. (c)); and unsafe passing on the right (Veh. Code, § 21755). Defendant was sentenced to an aggregate, unstayed term of 17 years to life in prison.
On appeal, defendant requests this court to review the sealed record on his pretrial Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); Evid. Code, §§ 1043-1047.) The People agree such review is appropriate. The trial court failed to follow the proper procedure in connection with the Pitchess motion. Thus, we must conditionally reverse judgment with directions to hold a new in camera review and to prepare a record sufficient for appellate review.
Given the limited nature of the issue on appeal, a detailed recitation of the facts of defendant's crimes is unnecessary.
Defendant drove down Interstate 5 at a high rate of speed, weaving in and out of traffic. He was drunk. The parties stipulated that more than an hour later defendant's blood alcohol level was .16 percent. Defendant pulled onto the right shoulder to pass a truck and collided with a car that was stopped on the shoulder. The driver of the stopped car was killed. The two passengers in defendant's car were injured.
California Highway Patrol (CHP) Officer Jason Gonzales was dispatched on a call for a reckless driver. He came upon the scene of the collision. A Volkswagen Jetta, with its flashers on, had been damaged very badly; its driver was inside with his seatbelt on. Gonzales was told the driver had died. Gonzales contacted defendant, who smelled of alcohol. Gonzales was the primary investigator and wrote a 34-page report on the collision.
Defendant filed a Pitchess motion with respect to Officer Gonzales. He sought names, addresses, and phone numbers of those filing complaints against Gonzales for dishonesty, morally lax character, false reports or arrests, and fabrication of accident reports, charges or evidence, as well as all statements in such complaints or by those interviewed due to the complaints. The motion was accompanied by a declaration of defendant's counsel stating there were significant inconsistencies concerning major contested issues in the two reports Gonzales prepared. The defense wanted the information to locate witnesses and assess credibility, and to cross-examine, impeach, and refresh the recollection of witnesses.
The CHP objected to the motion as untimely. The trial court found good cause for the late filing and set a hearing.
A closed hearing was held with the trial court and an attorney representing the CHP. The court asked the attorney if she had reviewed the records. She responded she had, but not the entire personnel file. The court asked if there appeared to be anything relevant to the indicated issues and she replied, "Nothing at all, Your Honor." The court noted for the record that the files had been reviewed, and there was nothing discoverable and no relevant evidence regarding the officer.
"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 Pen. Code, §§ 832.5, 832.7 & 832.8; Evid. Code, §§ 1043-1047 [statutory scheme governing Pitchess motions].) 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, supra, 26 Cal.4th at p. 1226; see also Warrick v. Superior Court (2005) 35 Cal.4th 1011, 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, supra, 26 Cal.4th 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); see Evid. Code, § 1045, subd. (b).) Subject to certain statutory exceptions and limitations, the trial court must then disclose to the defendant "'such information [that] is relevant to the subject matter involved in the pending litigation.' [Citation.]" (Mooc, supra, 26 Cal.4th at p. 1226.) "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.)
Fundamental to the procedure under Pitchess and the statutory scheme codifying Pitchess is "the intervention of a neutral trial judge" to examine the records and determine what documents, if any, should be disclosed. (Mooc, supra, 26 Cal.4th at p. 1227.) Mooc detailed the procedure to be followed when a custodian of personnel records presents them to the trial court. "Documents clearly irrelevant to a defendant's Pitchess request need not be presented to the trial court for in camera review. But if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the locus of decisionmaking is to be the trial court, not the prosecution or the custodian of records. The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise non-responsive to the defendant's Pitchess motion. A court reporter should be present to document the custodian's statements, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record. [Citation.]" (Mooc, supra, 26 Cal.4th at p. 1229.) "[T]he custodian of records is placed under oath before responding to a trial court's questions during the in camera inspection of records." (Id. at pp. 1229-1230, fn. 4.)
"Accordingly, in cases such as this where the custodian of records does not produce the entire personnel file for the court's review, he or she must establish on the record what documents or category of documents were included in the complete personnel file. In addition, if it is not readily apparent from the nature of the documents that they are non-responsive or irrelevant to the discovery request, the custodian must explain his or her decision to withhold them. Absent this information, the court cannot adequately assess the completeness of the custodian's review of the personnel files, nor can it establish the legitimacy of the custodian's decision to withhold documents contained therein. Such a procedure is necessary to satisfy the Supreme Court's pronouncement that 'the locus of decisionmaking' at a Pitchess hearing 'is to be the trial court, not the prosecution or the custodian of records.' (People v. Mooc, supra, 26 Cal.4th at p. 1229.) It is for the court to make not only the final evaluation but also a record that can be reviewed on appeal." (People v. Guevara (2007) 148 Cal.App.4th 62, 69.)
The trial court failed to follow this procedure. No documents were presented to the trial court for review and the court did not question the attorney for the CHP, the custodian of records here, about what documents (or category of documents) she reviewed. The record indicates only that she did not review the entire personnel file. The decision as to whether there were any relevant documents was made entirely by the custodian. The trial court improperly deferred to the custodian's judgment, without any review or questioning. Further, there is no record of what documents were reviewed for the decision that no documents needed to be disclosed, and therefore no appellate review is possible.
The judgment is conditionally reversed. The cause is remanded to the trial court with directions to hold a new hearing on defendant's Pitchess motion in conformance with the procedures described in this opinion. If the trial court finds there are discoverable records, they shall be produced and the court shall conduct such further proceedings as are necessary and appropriate. If the court finds there are no discoverable records, the judgment shall be reinstated as of that date.
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