IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
February 4, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MICHELE LANEY WALKER, DEFENDANT AND APPELLANT.
Super. Ct. No. CR076540
The opinion of the court was delivered by: Nicholson , Acting P.J.
P. v. Walker 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Michele Laney Walker was convicted of grand theft (Pen. Code, § 487, subd. (a))*fn1 and misdemeanor resisting an officer (§ 148, subd. (a)(1)). She was placed on three years' formal probation.
On appeal, defendant contends the trial court did not create a record allowing for appellate review of her Pitchess*fn2 motion. We conditionally reverse and remand for a new Pitchess hearing.
Thomas Griffin was gambling at Cache Creek Casino when he lost his wallet, which contained over $1,300. Griffin determined the wallet fell out of his back pocket and onto the floor. He could not find it, so he went to security.
A casino security supervisor reviewed surveillance footage of the area where Griffin lost the wallet. The surveillance system showed defendant walk up and bend down behind Griffin, as if she was picking up something. Defendant then walked through a bank of slot machines and into a women's restroom.
Yolo County Sheriff's Deputy Rial Price was on patrol in the casino that evening. He and two members of casino security confronted defendant on the casino floor. Defendant at first denied seeing a wallet or taking anything from the area where Griffin sat. When she was informed of the video evidence against her, defendant replied: "Well, maybe I did bend over and pick something up, or maybe I did bend over but I didn't pick anything up."
Seeing a bulge in defendant's pocket that looked like a wallet, Deputy Price asked if she had any weapons or controlled substances. Defendant replied: "Yes. And you're not going to search me," and walked away. Deputy Price told her to stop, but defendant swore at him and continued to walk away.
Deputy Price caught up with defendant and tried to restrain her. Defendant resisted, and Deputy Price took her to the ground in the ensuing struggle. She was then handcuffed and taken to the casino holding cell. Once in the cell, she produced $1,400 in cash and threw it on the ground saying, "I found some money on the floor and I was going to return it," and "here is the money, now can I go home?" and "finders keepers." Griffin's wallet was found in the restroom defendant had entered.
Testifying, defendant claimed the money was hers. She walked away during the confrontation because she was upset at being harassed and was afraid they would discover medical marijuana in her possession. She did not hear Deputy Price tell her to stop and did not see him until he grabbed her from behind. She did not know who grabbed her, so she pulled away. The money fell out of defendant's pocket after she had been placed in the holding cell. The handcuffs were too tight so she was kicking the cell to get someone's attention. The money fell out while she was kicking. She also testified she was kicking in an attempt to get the marijuana to fall out of her pocket.
Defendant filed a Pitchess motion to disclose Deputy Price's personnel records. The court granted the motion as to "dishonesty or excessive force." After an in camera review of the files, the court determined they contained nothing relevant to the defense.
Defendant seeks review of that order. She and the Attorney General contend, however, that we cannot conduct an adequate review of the in camera proceeding on defendant's Pitchess motion because the trial court did not make a record of the materials it considered. We agree.
"When a trial court concludes a defendant's Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer's personnel files, the custodian of the records is obligated to bring to the trial court all 'potentially relevant' documents to permit the trial court to examine them for itself. [Citation.]" (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229 (Mooc).) The court does so in an in camera hearing. (Id. at p. 1229.)
There is no record of the documents reviewed by the trial court. This was error. During the in camera hearing, the "trial court should then make a record of what documents it examined before ruling on the Pitchess motion. Such a record will permit future appellate review. If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined." (Mooc, supra, 26 Cal.4th at p. 1229.)
"Without some record of the documents examined by the trial court, a party's ability to obtain appellate review of the trial court's decision, whether to disclose or not to disclose, would be nonexistent." (Mooc, supra, 26 Cal.4th at p. 1229.) Where, as here, the trial court failed to make an adequate record of the documents presented at the Pitchess hearing, the initial remedy is to remand the case to the trial court with directions to hold a hearing to augment the record with evidence the trial court had considered when it ruled on the Pitchess motion. (Mooc, supra, at p. 1231.)
Events have rendered this approach futile. We granted defendant's motion to augment the record with the materials reviewed by the trial court in considering the Pitchess motion. The appeals clerk for the Yolo County Superior Court replied that "[t]here were no records located or lodged with the court" related to the Pitchess motion.
Since a remand for augmentation would be pointless, the parties assert we should conditionally reverse and remand for a new Pitchess hearing. We agree.
In People v. Guevara (2007) 148 Cal.App.4th 62, 69, the trial court did not make a record of the materials reviewed in camera for the defendant's Pitchess motion. The Court of Appeal held the only remedy was to "conditionally reverse the judgment and remand for a new Pitchess hearing in which the proper procedure is followed." (People v. Guevara, supra, at p. 69.)
As in Guevara, the trial court's error prevents us from reviewing its ruling on the Pitchess motion. Therefore, we conditionally reverse and remand for a new Pitchess hearing.
The judgment is reversed conditionally. The matter is remanded for the trial court to conduct a new Pitchess hearing. That hearing shall be conducted in accordance with the procedures discussed herein, including, but not limited to, establishing a record allowing for appellate review of the trial court's decision. 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, or that there is discoverable information but defendant cannot establish that she was prejudiced by the denial of discovery, the judgment shall be reinstated.
BUTZ ,J. MAURO ,J.