P. v. Day
Filed 11/19/09 P. v. Day CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, Plaintiff and Respondent, v. TOMMIE MARIO DAY, Defendant and Appellant. | B213738 (Los Angeles County Super. Ct. No. LA054452) |
APPEAL from a judgment of the Superior Court of Los Angeles County. John S. Fisher, Judge. Affirmed.
Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, and Sharlene A. Honnaka, Deputy Attorney General, for Plaintiff and Respondent.
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Defendant Tommie Mario Day appeals from the judgment of conviction reinstated by the trial court upon remand for further proceedings related to defendants motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Defendant contends the trial court erred by refusing to disclose two complaints that had been filed against the officer in question after the date of the original Pitchess hearing. We affirm.
BACKGROUND
On May 3, 2007, a jury convicted defendant of selling cocaine in violation of Health and Safety Code section 11352. He made no postverdict motions and was sentenced the same day.
In his original appeal, defendant argued that the trial court improperly denied his Pitchess motion without in camera review. We agreed and remanded the case for the trial court to conduct an in camera review of complaints regarding Los Angeles Police Department Officer Noreen Herbert alleging dishonesty, writing false police reports, perjury, or planting evidence, and to make a record as required by People v. Mooc (2001) 26 Cal.4th 1216, 12271230. We directed the trial court to either disclose any discoverable information and give defendant an opportunity to demonstrate prejudice or reinstate the judgment if the hearing did not reveal any discoverable information. (People v. Day (June 6, 2008, B199062 [nonpub. opn.].)
On remand, the trial court conducted the required in camera hearing and described the materials reviewed on the record. It found two complaints alleging a type of conduct in issue but did not order either disclosed because they were filed after April 20, 2007, the date upon which defendants Pitchess motion was originally heard. Although the court did not state the date these complaints were filed, the record of the in camera proceeding reflects that these complaints pertained to incidents occurring on August 9, 2007, and January 18, 2008. The court found no other potentially discoverable complaints and reinstated the judgment.
DISCUSSION
Defendant contends the trial court erred by failing to disclose the two complaints filed after April 20, 2007. He argues disclosure was required not just under Pitchess, but under Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194] (Brady).
Although we do not know the filing dates of the two complaints in issue, the dates of the incidents giving rise to the complaints establish that neither complaint existed either at the time the trial court originally considered defendants Pitchess motion or at the time of defendants trial. Our remand in defendants prior appeal was designed to provide a framework for the determination of whether any prejudice resulted from the trial courts error in failing to conduct an in camera hearing on defendants pretrial Pitchess motion. (People v. Hustead (1999) 74 Cal.App.4th 410, 419423.) It was not intended to provide defendant with open-ended discovery of matters outside the scope of what the trial court could and should have reviewed and possibly disclosed if it had not erred by denying defendants Pitchess motion on April 20, 2007. If the trial court had conducted an in camera review of Officer Herberts personnel file on April 20, 2007, it could not have ordered the disclosure of the two complaints in issue because neither of the complaints existed at that time. Indeed, the incidents giving rise to those two complaints had not even occurred yet. Defendant could not possibly have been prejudiced by the trial courts failure to disclose complaints that did not yet exist. Similarly, because neither of the two complaints existed at the time of defendants trial, and the incidents giving rise to the complaints had not occurred, defendant could not possibly have used either incident to attempt to impeach Officer Herbert at trial. Thus, there was no possibility defendant could demonstrate prejudice from the trial courts denial of his Pitchess motion by means of the two later-filed complaints. The trial court did not err by failing to disclose them on remand.
The prosecutors duty to disclose potentially exculpatory evidence under Brady is an ongoing responsibility that continues throughout the trial and does not end upon conviction. (In re Pratt (1999) 69 Cal.App.4th 1294, 1312.) But defendant must establish that the undisclosed information was favorable to the defense and that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. (Kyles v. Whitley (1995) 514 U.S. 419, 433434 [115 S.Ct. 1555].) Defendant cannot show a reasonable probability that, had the two post-conviction complaints against Herbert been disclosed, the result of the proceedings would have been different.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J.
We concur:
CHANEY, J.
JOHNSON, J.
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