California Court of Appeals, First District, Fifth Division
October 28, 2014
THE PEOPLE, Plaintiff and Respondent,
DEMETRIUS COLEMAN, Defendant and Appellant.
[REVIEW GRANTED BY CAL. SUPREME COURT]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
Superior Court of Contra Costa County, No. 05-110237-5, Thomas M. Maddock, Judge.
[Copyrighted Material Omitted]
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Eric D. Share and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Respondent.
The People charged appellant Demetrius Coleman with possession of cocaine base for sale (Health & Saf. Code, § 11351.5). Before the preliminary hearing, Coleman moved — pursuant to Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83 S.Ct. 1194] (Brady) and Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305] (Pitchess) — for discovery of material in the personnel file of Richmond Police Officer Matthew Stonebreaker, the arresting officer. Coleman also requested the City of Richmond Police Department (Police Department) “run a ‘rap sheet’” — a colloquialism for record of arrests and prosecution — on Officer Stonebreaker. The court partially granted the motion. It conducted an in camera hearing pursuant to Pitchess, reviewed Officer Stonebreaker’s personnel file, and ordered the City of Richmond (City) to disclose information concerning a “complaint of false identifying information.” The court, however, denied the motion to the extent it sought Officer Stonebreaker’s birth date or rap sheet. The court also denied Coleman’s motion for reconsideration.
Coleman moved to suppress at the preliminary hearing. The magistrate denied the motion. The trial court denied Coleman’s motion to set aside the information and his renewed suppression motion (Pen. Code, §§ 995, 1538.5, subd. (i)). Before trial, Coleman moved for an order pursuant to Brady and section 1054.1 requiring the prosecution to, among other things, run rap sheets on all testifying prosecution witnesses. The court granted the motion in part and denied it in part, explaining it would order the People to comply with Brady but would “not order rap sheets to be run on the officers.” A jury convicted Coleman of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and the court sentenced him to county jail. The court also ordered Coleman to pay a $570 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)), and $500 in attorney fees (Pen. Code, § 987.8, subd. (b)).
On appeal, Coleman contends the court erred by: (1) denying his motion to suppress; (2) declining to order the prosecution to run Officer Stonebreaker’s rap sheet; (3) delegating to the probation department the determination of his ability to pay the drug program fee pursuant to Health and Safety Code section
11372.7; and (4) ordering him to pay attorney fees pursuant to section 987.8 without determining his ability to pay.
We affirm in part and reverse in part. We affirm the court’s denial of Coleman’s motion to suppress and the court’s denial of his motions for an order requiring the prosecution to run Officer Stonebreaker’s rap sheet. We reverse the order imposing the Health and Safety Code section 11372.7 drug program fee and the section 987.8 attorney fees. On remand, the trial court must determine Coleman’s ability to pay both the drug program fee and attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged Coleman with possession of cocaine base for sale (Health & Saf. Code, § 11351.5). Before the preliminary hearing, Coleman filed a hybrid Brady/Pitchess motion for discovery of material in Officer Stonebreaker’s personnel file “indicating... internal and civilian complaints, investigations, or reports in which allegations of corruption, illegal arrests and/or searches, the fabrication of charges and/or evidence, acts of harassment or malicious conduct against citizens, dishonesty and improper tactics... or false arrest[.]” The motion also requested the Police Department to produce “Officer Stonebreaker’s relevant criminal history, including any arrests or convictions involving crimes of moral turpitude... whether that information is contained in personnel files or not.” In addition, Coleman requested the Police Department to "run a ‘rap sheet’ on Officer Stonebreaker.
Regarding Brady, Coleman contended he was entitled to Officer Stonebreaker’s criminal history, if any, because the information would impeach Officer Stonebreaker, a testifying prosecution witness. Coleman claimed he needed the information “to competently defend [himself] in the underlying criminal prosecution and to cross-examine prosecution witnesses at trial.” Regarding Pitchess, Coleman argued there was good cause for disclosure of Officer Stonebreaker’s criminal history because Officer Stonebreaker made material misstatements in his police report. According to Coleman, Officer Stonebreaker’s truthfulness was “material to the issue in this case because his past misconduct would rebut any reasonable suspicion that Mr. Coleman was ever in possession of the narcotics.”
Defense counsel’s supporting declaration averred Coleman did not possess narcotics on the day of the incident and did not “toss[ ] a bag of cocaine from his person.” Counsel stated the City, the Police Department, and/or the Contra Costa County District Attorney’s Office possessed the materials and there was good cause to produce them because Officer Stonebreaker had a “tendency to
fabricate incident reports and initiate detentions without reasonable suspicion.” In addition, defense counsel stated information about Officer Stonebreaker’s criminal history was relevant to impeach him at a motion to suppress hearing, preliminary examination, or trial. Finally, defense counsel’s declaration attached Officer Stonebreaker’s police report, where he stated he saw Coleman toss a bag of narcotics behind him, and Officer Danielle Evans’s police report, where she stated: “While standing next to Coleman I did not observe him discard the suspected narcotics.”
The City and Police Department opposed the motion, arguing Coleman had not demonstrated the confidential information was material to the issues at the preliminary hearing, in part because defense counsel’s supporting declaration did not allege “facts from which it is reasonable to conclude [ ] Officer [Stonebreaker] may have a criminal history or, if he does, that anything contained in that history may be relevant to the pending litigation.” The City also stated it did not possess “summary criminal history” for Officer Stonebreaker and was not required to search for such information. As the City explained, “In compliance with California Department of Justice directives regarding access to the Automated Criminal History System, the City does not search for criminal history except on a ‘need to know’ basis and in accordance with state law. Under... Sections 11105(b) and 13300(3)(b), the City may provide a summary criminal history to the court only after the court has determined that the information is needed in the course of its duties.”
At a hearing, counsel for the City and the Police Department argued the Pitchess motion lacked “allegations supporting a search for a criminal history.... We have [no] information that leads us to believe there might be a criminal history” for Officer Stonebreaker and explained, “What is in the personnel file prior to employment, there is a check, a pre-employment check, and that would be in the personnel file, if there were any disqualifying offenses. That’s what already exists in there. [¶] In order to have permission to get more, there needs to be some sort of showing of necessity and... the DOJ wouldn’t allow us to just run Live Scans; we cannot do that.”
At the conclusion of the hearing, the court agreed to examine Officer Stonebreaker’s personnel file for “dishonesty in terms of falsifying information” but explained, “It seems that the purpose of Pitchess is being stretched beyond its original intent.... [¶] I’m not going to order a [ ] rap sheet run on the officer. I believe that’s something that’s reserved for trial.... [¶] I’m also going to decline to give the date of birth of the officer. Should this case go forward — we’ve not even had a holding order to see if it’s adequate to go to trial. [¶] Should it go forward, you can pursue that in the trial court.” The court then conducted an in camera hearing pursuant to Pitchess and ordered the City to disclose information concerning a “complaint of false identifying information.”
Coleman moved for reconsideration, arguing he was entitled to Pitchess discovery — including Officer Stonebreaker’s criminal history — before the preliminary hearing. In the alternative, Coleman urged the court to order the City to disclose Officer Stonebreaker’s birth date to the prosecution so the prosecution could run the rap sheet. The City and the Department opposed the motion and Coleman’s request to order the City to disclose Officer Stonebreaker’s birth date. They argued Coleman’s original motion lacked allegations “supporting a reasonable belief that [ ] Officer [Stonebreaker] may have a criminal record.... [¶] The Court conducted in camera review of the Officer’s confidential records maintained by the [Police] Department and ordered disclosure of all relevant information in accordance with Pitchess procedure. Absent evidence that [ ] Officer [Stonebreaker] has a criminal history and that the criminal history may be relevant to Defendant’s case, the Court has no grounds upon which to order the City to obtain a criminal history and the City has no right to request a criminal history on an Officer without an order demonstrating that there is a need to know.”
Following a hearing, the court denied the reconsideration motion, concluding the “original Pitchess motion did not have a sufficient basis of materiality or evidence for the court to consider... releasing the date of birth or rap sheet.” The court continued, “I don’t believe there’s any legal authority to provide a rap sheet... particularly without any showing whatsoever that a rap sheet would be relevant to this, as well as the date of birth is not relevant to the Pitchess motion.” As the court explained, “I granted the in camera review on the Pitchess motion based on the other aspects of the motion, to look for any evidence of the type of misconduct that was relevant and for which there was a material showing, but there was no sufficient showing for the release of the date of birth, which is personal and private, or the rap sheet. [¶] I agree the City can’t do it [obtain Officer Stonebreaker’s rap sheet, if any] without a court order, and therefore, I am not going to change my original decision. The Pitchess motion as to the date of birth and/or running of a rap sheet is denied.”
Coleman did not move to dismiss contending the prosecution violated its Brady obligation to disclose exculpatory information (see People v. Gutierrez (2013) 214 Cal.App.4th 343, 349 [153 Cal.Rptr.3d 832]) nor did he seek writ relief from the order denying his request for Officer Stonebreaker’s rap sheet (Hill v. Superior Court (1974) 10 Cal.3d 812 [112 Cal.Rptr. 257, 518 P.2d 1353]).
Motion to Suppress, Renewed Suppression Motion, and Motion in Limine
Before the preliminary hearing, Coleman moved to suppress. At the combined motion to suppress and preliminary hearing, the parties presented the following evidence:
Richmond Police Officers Stonebreaker and Evans were in uniform on bicycle patrol in a residential area known for narcotics activity when they saw Coleman walking alone. They rode up to Coleman, got off their bicycles, and stood about five feet away from him. They said, “[W]hat’s up?” Officer Stonebreaker asked Coleman for his name and date of birth and Coleman responded. At that point, Officer Evans performed a records check. As she did so, Officer Stonebreaker asked Coleman whether he was on probation or parole, and whether he had “anything illegal on him[.]” The officers told Coleman they were part of the bicycle patrol program and were “meeting residents in the area. [Coleman] stopped to talk” to the officers “to see what it was.” The officers issued no commands nor gave Coleman any directions.
While the officers spoke to Coleman — and about three minutes after they approached him — they learned he had an outstanding warrant. Officer Stonebreaker handcuffed Coleman and the officers waited “for a transport vehicle.” Coleman’s back was against a rod iron fence. Officer Stonebreaker stood in front of Coleman, on his left side. Officer Evans stood on Coleman’s other side, facing Officer Stonebreaker. Together, the officers and Coleman formed a triangular position. While they waited, Mr. Coleman “adjusted his pants a couple of times and while doing so he retrieved a clear plastic baggy containing an off-white chunky substance” Officer Stonebreaker suspected was cocaine. Coleman “kind of moved his hands... back and forth. He did it a couple of times. As he’s doing so, he’s kind of smiling and laughing.” Coleman tossed the object and it landed about two or three feet behind him, behind the fence. Officer Evans saw Coleman adjusting his clothes, but did not see him discard any narcotics.
A patrol car arrived. As Officer Evans escorted Coleman to the car, Officer Stonebreaker retrieved the object: a clear plastic baggie with 18 individually packaged pieces and another baggy containing “a couple of large chunks” — or about 6.29 grams — of cocaine base. At that point, Coleman “became very angry” and “very combative, trying to hit the door with his shoulder, very verbally abusive, and saying whatever we found is not his.” When the officers searched Coleman, they found $193 in small bills.
At the conclusion of the preliminary hearing, the court denied Coleman’s motion to suppress, concluding the encounter was consensual, and held Coleman to answer the charge. Coleman filed a motion to set aside the
information (§ 995) and a renewed suppression motion (§ 1538.5, subd. (i)). The trial court denied the motions. It determined the officers “did not issue any commands; they did not block [Coleman’s] path; they did not display any weapons. The evidence did not reflect a physical touching of [Coleman’s] person or a tone of voice indicating that it was mandatory for [Coleman] to answer Officer Stonebreaker’s questions. [¶] The encounter occurred in daylight at a seemingly busy location. The public nature of the encounter is arguably increased because the officers were on bicycles — no patrol cars to shield from public view whatever was going on.” Finally, the court concluded the warrant check did not transform the encounter into a detention.
Later, Coleman moved in limine for an order — pursuant to Brady and section 1054.1 — requiring the prosecution to, among other things, run rap sheets on all prosecution witnesses, “including any police witnesses, if they have not done so already.” At a hearing, the court explained Coleman was requesting the “prosecution run rap sheets on all prosecution witnesses including any police witnesses if they’ve not already done so. Essentially, the Brady obligation.” When the court asked the prosecutor whether he objected, the prosecutor responded, “[n]o objection” and noted he had disclosed Officer Stonebreaker and Evans’s police reports and a “supplemental police report which was discovered.” Then the court stated, “I will then grant [the motion in limine]. The People have complied with their Brady requirements.”
At that point, defense counsel clarified she “requested specifically that rap sheets be run on all prosecution’s witnesses, including officers.” The court explained it was granting the motion in limine “except that I will not order rap sheets be run on the officers. However, I will require the People to comply with Brady. Somewhat of a distinction.” In response, the prosecution stated, “Yes, Your Honor.” Defense counsel objected, arguing: “I think that the prosecution should be required to run rap sheets on their police witnesses. There’s no reason to exempt them. And it’s my understanding that the prosecution does run rap sheets on all of their other witnesses as well as defense witnesses and sometimes even jurors.” The court noted the objection and overruled it.
Verdict and Sentencing
The jury convicted Coleman of possession of cocaine base for sale (Health & Saf. Code, § 11351.5). The court sentenced Coleman to three years in jail. Among other things, the court ordered Coleman to pay a $570 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)) and $500 in attorney fees (Pen. Code, § 987.8, subd. (b)). At the sentencing hearing, the court stated: “[Coleman is] to pay a court security fee of $40, a court conviction assessment of $30, a probation report fee of $176, a criminal justice
administration fee of... $564. [¶] A lab analysis fee... of $190 and a drug program fee of $570. [¶] All of these other fines and fees, except for the $600 restitution fee, are based on his ability to pay. So probation will do an analysis of his ability to pay, and it will be set that way. [¶] Attorney’s fees will be assessed in the amount of $500.” Defense counsel did not object to the imposition of these fees.
The probation report did not recommend the imposition of the drug program fee or attorney fees, nor did it address Coleman’s ability to pay such fees. The report, however, described Coleman’s education and employment history. Coleman — who was 39 years old at the sentencing hearing — earned his general equivalency diploma (GED) and took several classes toward earning an administrative justice certificate. He dropped out of the program after losing his driver license. Coleman suffers from numerous health problems and reported being diagnosed with schizophrenia. The probation report described Coleman as “employable” and noted he has “electrical skills. He was employed by the Chevron Refinery in Richmond performing fire watch duties from 1993 to 1997.... He was employed by Veraflow in Richmond, which manufactures parts for the Chevron Refinery. Additionally he possesses skills in painting and landscaping.” Before Coleman was incarcerated, he was the primary caregiver for his ailing sister. Coleman “reported that he does not have a checking or saving account. He advised that he has no assets.”
We filed our decision. After receiving a request to publish the opinion, we granted rehearing on our own motion to reconsider our decision. (Cal. Rules of Court, rule 8.268(a)(1).)
The Court Properly Denied Coleman's Motion to
The Court Did Not Err by Declining to Compel the Prosecution to Run Officer Stonebreaker’s Rap Sheet
Coleman contends he “had a right to discovery of Officer Stonebreaker’s criminal history, if any” under Brady, Pitchess, and section 1054.1 and
suggests the court should have ordered the prosecution to run Officer Stonebreaker’s rap sheet. To place the issues in context, we briefly describe “‘criminal offender record information, ’” which consists of “records and data compiled by criminal justice agencies for purposes of identifying criminal offenders and of maintaining as to each such offender a summary of arrests, pretrial proceedings, the nature and disposition of criminal charges, sentencing, incarceration, rehabilitation, and release.” (§ 13102.) “Criminal offender record information” is commonly known as a “rap sheet” or a “CLETS rap sheet.” (See Cal. Code Regs., tit. 11, § 701; In re M.L. (2012) 205 Cal.App.4th 210, 217, fn. 4 [139 Cal.Rptr.3d 911]; CBS, Inc. v. Block (1986) 42 Cal.3d 646, 658-659 [230 Cal.Rptr. 362, 725 P.2d 470].)
The parties are correct that rap sheets themselves are not discoverable. (People v. Roberts (1992) 2 Cal.4th 271, 308 [6 Cal.Rptr.2d 276, 826 P.2d 274] (Roberts); People v. Santos (1994) 30 Cal.App.4th 169, 175 [35 Cal.Rptr.2d 719].) "However, “much, if not all of the information contained
in the rap sheets is discoverable. [Citations.]” (Cal. Criminal Law: Procedure and Practice, supra, § 11.8, p. 250.) The California Supreme Court has held that the prosecution is under a Brady obligation to reveal the existence of felony convictions of prosecution witnesses. (Roberts, supra, 2 Cal.4th at p. 308; In re Ferguson (1971) 5 Cal.3d 525, 533 [96 Cal.Rptr. 594, 487 P.2d 1234].) Such exculpatory and impeachment evidence also includes information relating to charges pending against prosecution witnesses (People v. Martinez (2002) 103 Cal.App.4th 1071, 1080 [127 Cal.Rptr.2d 305]; People v. Coyer (1983) 142 Cal.App.3d 839, 842 [191 Cal.Rptr. 376]) and prosecution witnesses’ probationary status. (Millaud v. Superior Court (1986) 182 Cal.App.3d 471, 476-477 [227 Cal.Rptr. 222]; Pipes & Gagen, California Criminal Discovery (4th ed. 2008) § 1:35.1, p. 111.)
A. The Court Did Not Err By Declining to Compel the Prosecution to Run Officer Stonebreaker’s Rap Sheet Pursuant to Brady
Coleman contends the court’s refusal to order the disclosure of Officer Stonebreaker’s criminal history information, if any, requires reversal pursuant to Brady. According to Coleman, the court erred by “carv[ing] out an exception” for Officer Stonebreaker and declining to order the prosecution to run his rap sheet. We disagree. As we explain below, we conclude the prosecution has a duty pursuant to Brady to learn of and disclose material impeachment information about police officer witnesses within the prosecution’s constructive possession, but the prosecution cannot be forced to comply with its Brady duty to investigate in a particular manner.
The prosecution’s duty under Brady is well-established and we need not recite it here. (See People v. Salazar (2005) 35 Cal.4th 1031, 1042-1043 [29 Cal.Rptr.3d 16, 112 P.3d 14]; In re Steele (2004) 32 Cal.4th 682, 697 [10 Cal.Rptr.3d 536, 85 P.3d 444].) As stated above, information found on a rap sheet about a witnesses’ criminal history may meet Brady’s standard of materiality depending on the circumstances in a particular case. (See infra, at p. 1389.) The People do not argue otherwise. They concede the prosecution had an obligation to disclose material favorable evidence under Brady and that — under Little — Coleman had “the right to information relating to [Officer Stonebreaker’s] convictions of any felon[ies] or misdemeanors involving moral turpitude” if the information was “in the possession of the prosecuting attorney or the investigating agencies” or “‘reasonably accessible’ to the prosecutor.”
Even when material information is within the constructive possession of the prosecution, Brady does not empower a defendant to compel the precise manner by which prosecutors learn whether such information exists. As we recently explained in Johnson, “Brady imposes the disclosure obligation on the prosecution, but it allows some flexibility in how the prosecution
complies with that obligation.” (Johnson, supra, 228 Cal.App.4th at p. 1080.) To be sure, prosecutors need some mechanism for ensuring they learn of Brady material within their constructive possession. (See Giglio v. United States (1972) 405 U.S. 150, 154 [31 L.Ed.2d 104, 92 S.Ct. 763].) But the choice of that mechanism is within district attorneys’ broad “discretionary powers in the initiation and conduct of criminal proceedings, ” which “extend from the investigation and gathering of evidence relating to criminal offenses [citation], through the crucial decisions of whom to charge and what charges to bring, to the numerous choices the prosecutor makes at trial regarding ‘whether to seek, oppose, accept, or challenge judicial actions and rulings.’” (People v. Eubanks (1996) 14 Cal.4th 580, 589 [59 Cal.Rptr.2d 200, 927 P.2d 310].) As such, that choice “generally is not subject to supervision by the judicial branch.” (People v. Birks (1998) 19 Cal.4th 108, 134 [77 Cal.Rptr.2d 848, 960 P.2d 1073].)
Although we conclude a defendant cannot compel the prosecution to run rap sheets on police officer witnesses pursuant to Brady, we note “the prosecution bears the risk of reversal if the adopted procedures are inadequate and Brady material is not disclosed.” (Johnson, supra, 228 Cal.App.4th at p. 1081.) In other words, prosecutors who investigate witnesses’ criminal histories through mechanisms other than running rap sheets risk a future Brady challenge if favorable information is later uncovered that would have been revealed on a rap sheet. Prosecutors have the discretion to learn of evidence favorable to the defense through the methods they consider to be appropriate, but a Brady claim may lie if a defendant is prejudiced because a prosecutor failed to obtain favorable evidence that was readily available by running a rap sheet. And this will be true whether or not the prosecutor acted in good faith or actually knew about the evidence that was not disclosed. (Kyles v. Whitley (1995) 514 U.S. 419, 438 [131 L.Ed.2d 490, 115 S.Ct. 1555]; People v. Williams (2013) 58 Cal.4th 197, 256 [165 Cal.Rptr.3d 717, 315 P.3d 1]; see also U.S. v. Price (2009) 566 F.3d 900.) “If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.” (United States v. Agurs (1976) 427 U.S. 97, 110 [49 L.Ed.2d 342, 96 S.Ct. 2392].)
We conclude the court did not err by requiring the prosecution to comply with Brady but declining to order the prosecution to run Officer Stonebreaker’s rap sheet.
B. The Court Did Not Abuse Its Discretion by Denying Coleman’s Pitchess Motion to the Extent it Sought Officer Stonebreaker’s Rap Sheet and Birth Date
Coleman contends he was entitled to Officer Stonebreaker’s criminal history, if any, pursuant to Pitchess. “A defendant has a limited right to
discovery of a peace officer’s confidential personnel records if those files contain information that is potentially relevant to the defense. [Citations.]” (People v. Moreno (2011) 192 Cal.App.4th 692, 700-701 [121 Cal.Rptr.3d 669] (Moreno).) The mechanics of a Pitchess motion are well established. (See People v. Mooc (2001) 26 Cal.4th 1216, 1219-1220 [114 Cal.Rptr.2d 482, 36 P.3d 21] (Mooc); §§ 832.7, 832.8, Evid. Code, §§ 1043-1047.) We review the court’s ruling on Coleman’s Pitchess motion for abuse of discretion. (Moreno, supra, 192 Cal.App.4th at p. 701.)
We need not determine whether a police officer’s rap sheet constitutes a “personnel record” under sections 832.7 and 832.8, nor whether a criminal defendant may obtain a police officer’s rap sheet pursuant to Pitchess when such a document is present in the personnel file (see California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1024 [101 Cal.Rptr.2d 379] [suggesting Pitchess governs a prosecutor’s duty to disclose peace officers’ acts of misconduct involving moral turpitude]; Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 400 [123 Cal.Rptr.2d 99] [". . . Pitchess motions may also be used to discover information to impeach an officer’s credibility”]) because the City stated there was no rap sheet in Officer Stonebreaker’s personnel file and because the City and the Police Department stated they did not believe Officer Stonebreaker had a criminal history. Coleman concedes “one of the requirements of Pitchess is that the information be in the possession of the law enforcement agency.” As Coleman recognizes, “If the City did not have the officer’s criminal record... the proper method of obtaining the information was a general discovery request under Brady and section 1054.1.” Here, the court was within its discretion to deny Coleman’s Pitchess motion for Officer Stonebreaker’s criminal history where there was no rap sheet or criminal history information in Officer Stonebreaker’s personnel file.
People v. Cruz (2008) 44 Cal.4th 636 [80 Cal.Rptr.3d 126, 187 P.3d 970] (Cruz) is instructive. There, the defendant claimed the court erred by denying his Pitchess motion for information in two of three police officers’ personnel
files. (Id. at p. 669.) The California Supreme Court disagreed. It concluded the trial court did not abuse its discretion by denying the motion as to the two police officers in part because the defendant could not “demonstrate prejudice on a finding of error, as county counsel’s representations at the hearing on the motion below, and the trial court’s statements upon completion of its review of [the third officer’s] confidential personnel files, together make clear that no information of the nature being sought through the discovery motion was to be found in any of the three officers’ personnel files. [Citation.]” (Id. at pp. 670-671.) Here as in Cruz, there was “no information of the nature being sought” in Officer Stonebreaker’s personnel file and, as a result, Coleman cannot demonstrate prejudice from the denial of his Pitchess motion seeking Officer Stonebreaker’s rap sheet.
Coleman also suggests the court erred by denying his Pitchess motion to the extent it sought Officer Stonebreaker’s birth date. We are not persuaded. While a police officer’s birth date may be discovered only by means of a Pitchess motion (Garden Grove Police Department v. Superior Court (2001) 89 Cal.App.4th 430, 433-435 [107 Cal.Rptr.2d 642]), the denial of Coleman’s Pitchess motion for Officer Stonebreaker’s birth date was not prejudicial because Coleman concedes he sought Officer Stonebreaker’s date of birth to enable the prosecution to “run a criminal background check” on the officer. As discussed at length above, we have concluded the prosecution has no obligation to run a police officer’s rap sheet.
C. The Court Did Not Err By Declining to Compel the Prosecution to Run Officer Stonebreaker’s Rap Sheet Pursuant to Section 1054.1
Coleman seems to argue the court should have ordered the prosecution to run Officer Stonebreaker’s rap sheet pursuant to section 1054.1, which requires the prosecuting attorney to “disclose to the defendant or his... attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [¶]... [¶] (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial. [¶] (e) Any exculpatory evidence.” (See Jones v. Superior Court (2004) 115 Cal.App.4th 48, 57-58 [8 Cal.Rptr.3d 687]; Cal. Criminal Law: Practice and Procedure, supra, § 11.7, at p. 249.) We disagree. Section 1054.1 does not compel the manner by which the prosecutor must inquire and disclose the existence of a material prosecution witness’s felony convictions.
Coleman’s reliance on Little does not alter our conclusion. Little held “an informal request for standard reciprocal discovery” pursuant to section 1054.1 “is sufficient to create a prosecution duty to disclose the felony convictions of
all material prosecution witnesses if the record of conviction is ‘reasonably accessible’ to the prosecutor.” (Little, supra, 59 Cal.App.4th at p. 428.) Little holds the prosecution must, “on a standard discovery request[, ] inquire of ‘the existence’” of felony convictions for certain witnesses and disclose them but it does not compel the means by which prosecutors “inquire” of the existence of such felony convictions. (Id. at p. 433.)
The order imposing the Health and Safety Code section 11372.7 drug program fee and the Penal Code section 987.8 attorney fees is reversed. On remand, the court must determine Coleman’s ability to pay these fees in light of his total financial situation. If Coleman has the ability to pay such fees, the order imposing the fees will be reinstated. In all other respects, the judgment is affirmed.
Simons, J., and Needham, J., concurred.