Filed 8/12/26 P. v. Evans CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B341423
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. XSWYA022214)
v.
CARNELL EVANS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Scott T. Millington, Judge. Conditionally
reversed and remanded with directions.
Daniel Milchiker, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Charles Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
Defendant Carnell Evans appeals from the judgment after
resentencing pursuant to Penal Code1 section 1172.75. Evans
contends the trial court abused its discretion in denying his
motion under section 1385 and People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 to dismiss one of his prior “strike”
convictions. Evans additionally argues the court erroneously
denied his motion for discovery of a peace officer’s personnel
records under Brady v. Maryland (1963) 373 U.S. 83 and Pitchess
v. Superior Court (1974) 11 Cal.3d 531 based on its conclusion
that a Pitchess motion cannot be made in section 1172.75
proceedings.
The People do not dispute Evans may move for discovery of
potential Brady material under the circumstances of this case.
We accept the People’s implicit concession. Because the
trial court did not make any findings as to whether relevant and
discoverable evidence exists, we conditionally reverse and
remand for further proceedings on the motion.
BACKGROUND2
On June 30, 1994, as Los Angeles Police Department
(LAPD) Officers Joseph Chavez and Michael Harrington turned
their unmarked patrol car into an intersection, they observed
Evans standing with four other men in front of a restaurant.
Officers Chavez and Harrington then saw Evans pull out a gun,
fire at their car, run into a liquor store, and throw the gun over
the food shelves. Officers Chavez and Harrington apprehended
Evans in the store and retrieved the gun.
1 Further statutory references are to the Penal Code.
2 We provide a brief summary of facts from Evans’s prior
appeal. (People v. Evans (Jul. 2, 1998, B112373) [nonpub. opn.].)
2
In 1996, a jury convicted Evans of two counts of assault
with a firearm (§ 245, subd. (a)(2)) and found true as to each
count that he personally used a firearm (§ 12022.5, subd. (a)).
The jury also found Evans had three prior convictions that
qualified as strikes under the “Three Strikes” law (§§ 667,
subds. (b)–(i), 1170.12, subd. (a)) and prior serious felonies (§ 667,
subd. (a)). The jury also found Evans had one prior prison term
(§ 667.5, former subd. (b)). The trial court sentenced Evans to an
aggregate term of 71 years four months to life.
In 2022, Evans became eligible for resentencing under
Senate Bill No. 483 (2021–2022 Reg. Sess.) and section 1172.75.
On November 30, 2023, Evans filed a resentencing brief
asking the trial court to (1) strike the prior prison term
enhancement; (2) conduct a full resentencing to apply any other
ameliorative changes to the law enacted since the time of his
original sentence; and (3) exercise its discretion under
section 1385 and Romero to strike one of his prior strikes and
impose a second-strike sentence. The People opposed, asking the
court to only strike the prior prison term enhancement.
On January 26, 2024, Evans’s attorney received an e-mail
from the Los Angeles County District Attorney’s Office (LADA)
after it learned Evans had filed a resentencing petition. In
pertinent part, the e-mail stated: “[LADA] requested possible
‘Brady’ information in personnel files from [LAPD] concerning
officers who are potential witnesses in open criminal
prosecutions. Based upon this request, LAPD advised LADA that
[Officer Chavez] has information in [his] personnel file that may
be ‘potentially exculpatory or used for impeachment.’ [¶] [T]his
notification is a ‘tip’ that the officer’s personnel file may contain
disclosable Pitchess/Brady information . . . . [Citation.] [¶]
Disclosure of this information is not an endorsement of the
validity of any allegation of misconduct, nor a concession as to the
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possible admissibility of the underlying information at a future
date. LADA’s Discovery Compliance Unit has no further
information related to the content of this officer’s personnel file.
[¶] [I] am notified that there may be conduct dating back to 1994.
I have no further information. Please let me know when you file a
Pitchess motion, and I will join.”
On April 18, 2024, Evans filed a Pitchess motion seeking
potential Brady material from Officer Chavez’s personnel file.
The LAPD opposed, arguing among other things that
section 1172.75 does not confer a right to discovery of an officer’s
personnel file.
At a hearing on May 17, 2024, the trial court expressed its
view that Pitchess motions cannot be made in section 1172.75
proceedings. The LAPD’s counsel appeared and stated she would
submit on the opposition, but she also noted that in a different
proceeding a Pitchess motion may be appropriate. The court
agreed with the LAPD’s position but stated it would conduct an
in camera hearing out of an abundance of caution to develop a
record for the Court of Appeal. Because the custodian of records
was not present, the court continued the hearing to August 6,
2024. On August 6, the court held an in camera hearing and
denied Evans’s motion on the sole basis that Pitchess motions
cannot be made in section 1172.75 proceedings.
On September 5, 2024, the trial court recalled Evans’s
sentence. The court struck all of the enhancements but declined
to dismiss the prior strike conviction. It resentenced Evans to an
aggregate term of 50 years to life consecutive to a five-
year sentence in another case.
Evans timely appealed.
After Evans commenced this appeal, he filed a
postjudgment discovery motion pursuant to section 1054.9 again
seeking Brady material in Officer Chavez’s personnel file.
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A different trial court heard the motion and denied it on the
mistaken belief that the first trial court held an in camera
hearing and found there was nothing to disclose.
DISCUSSION
“ ‘Under Brady . . . and its progeny, the prosecution has a
constitutional duty to disclose to the defense material exculpatory
evidence, including potential impeaching evidence.’ ” (In re
Jenkins (2023) 14 Cal.5th 493, 504.) Although “Brady is
essentially a trial right,” our “courts have acknowledged that ‘the
People’s obligations under Brady are ongoing, even
postjudgment.’ ” (People v. Nuno (2024) 105 Cal.App.5th 1030,
1058–1059 (Nuno); see also In re Lawley (2008) 42 Cal.4th 1231,
1246 [“ ‘ “[Even] after a conviction[,] the prosecutor . . . is bound
by the ethics of his office to inform the appropriate authority of
. . . information that casts doubt upon the correctness of the
conviction” ’ ”]; Canion v. Cole (2005) 210 Ariz. 598, 599 [the state
has a continuing Brady duty to disclose evidence that “comes to
its attention” after sentencing], cited with approval in Jenkins, at
p. 505.) Thus, for example, a convicted defendant may seek
discovery of Brady material to support their habeas corpus claim
(Jenkins, at p. 512) or to aid their defense at a section 1172.6
resentencing hearing (Nuno, at pp. 1061–1062).
“In Pitchess[,] the California Supreme Court ‘recognized
that a criminal defendant may, in some circumstances, compel
the discovery of evidence in the arresting law enforcement
officer’s personnel file that is relevant to the defendant’s ability to
defend against a criminal charge. “In 1978, the California
Legislature codified the privileges and procedures surrounding
what had come to be known as ‘Pitchess motions’ . . . through the
enactment of Penal Code sections 832.7 and 832.8 and Evidence
Code sections 1043 through 1045.” ’ ” (Nuno, supra,
105 Cal.App.5th at p. 1052.)
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“A Pitchess motion may be used to obtain Brady material
contained in a peace officer’s confidential personnel file.” (Nuno,
supra, 105 Cal.App.5th at p. 1055.) “However, because the
‘ “ ‘Pitchess process’ operates in parallel with Brady and does not
prohibit the disclosure of Brady information,” ’ all information
that the trial court finds to be exculpatory and material under
Brady must be disclosed, notwithstanding” the limitations of the
Pitchess process. (People v. Superior Court (Johnson) (2015)
61 Cal.4th 696, 720 (Johnson).)
Here, Evans’s Brady rights appear to be implicated. Indeed,
after the LADA learned of Evans’s section 1172.75 petition, it
gave him a strong “tip” that Officer Chavez’s personnel file
contains potential Brady material and stated it would join a
Pitchess motion. Further, although the LAPD opposed Evans’s
motion below, it also acknowledged that the motion may be
appropriate in a different criminal proceeding. And importantly,
the People implicitly concede on appeal that Evans appropriately
made a discovery motion for Brady material in connection with
his resentencing petition.
Although the proceeding below was a resentencing hearing,
Brady material may have some relevance. Where, as here,
section “1172.75 applies, it requires full resentencing, not simply
striking the now-invalidated priors.” (People v. Rhodius (2025)
17 Cal.5th 1050, 1067, fn. 3.) This entails applying “any other
changes in law that reduce sentences or provide for judicial
discretion so as to eliminate disparity of sentences and to
promote uniformity of sentencing.” (§ 1172.75, subd. (d)(2).)
Under the resentencing procedures set forth in
section 1172.1, subdivision (a)(5), the trial court must consider
“evidence that reflects that circumstances have changed since the
original sentencing so that continued incarceration is no longer in
the interest of justice,” which may include “evidence that the
6
defendant’s constitutional rights were violated in the proceedings
related to the conviction or sentence at issue, and any other
evidence that undermines the integrity of the underlying
conviction or sentence.” (Ibid.)
Further, at a resentencing hearing under section 1172.75,
the trial court may exercise its power under section 1385 and
Romero to dismiss a prior strike conviction in furtherance of
justice. (People v. Rogers (2025) 108 Cal.App.5th 340, 361–364.)
When exercising this power, the court may consider, among other
things, the nature and circumstances of a defendant’s conviction.
(People v. Shaw (2020) 56 Cal.App.5th 582, 586.)
Thus, whether Pitchess motions are relevant as a matter of
course under section 1172.75, in the circumstances of this case
the trial court should have considered the Brady component of
Evans’s motion. (Nuno, supra, 105 Cal.App.5th at p. 1055;
Johnson, supra, 61 Cal.4th at p. 720.) Here, the People indicated
Brady material may exist, and the material may be relevant to
factors to be considered at Evans’s full resentencing.
Because the record contains no findings regarding the
Brady issue, a conditional reversal and remand is appropriate to
allow the court to make those findings in the first instance.
(Nuno, supra, 105 Cal.App.5th at p. 1062.)3 If, after reviewing
Officer Chavez’s personnel records, the court decides that nothing
needs to be disclosed under Brady principles, it should state its
reasons and reinstate the judgment. (Nuno, at p. 1062.) If the
court determines that information must be disclosed to Evans
3 It is unclear from the record whether the trial court made
any Brady findings in a sealed transcript, since we do not have
that transcript on appeal. If it has already reviewed the record, it
need only recite its findings either way on the record. If it has
not, it should review the records and make those findings first.
7
under Brady principles, the court should order disclosure and
allow Evans an opportunity to demonstrate whether there is a
reasonable probability the outcome of his resentencing would
have been different had the information been disclosed. (Nuno, at
pp. 1056, 1062–1063.) If Evans demonstrates prejudice, the court
should hold a new section 1172.75 resentencing hearing. (Nuno,
at pp. 1062–1063.)
The parties ask us to review the sealed transcripts of the in
camera proceeding to determine whether there is any
discoverable material, but we decline to do so as that is an issue
for the trial court in the first instance. Accordingly, we take no
position on whether relevant and disclosable evidence exists,
whether Evans was prejudiced, and, if there is prejudice, how the
court should exercise its discretion in resentencing Evans.
Finally, because the trial court may resentence Evans if it
determines the denial of the Pitchess motion caused him
prejudice, we need not and do not consider the parties’ arguments
as to whether the court abused its discretion in denying Evans’s
Romero motion.
DISPOSITION
The order is conditionally reversed, and the matter is
remanded to the trial court for further proceedings consistent
with this opinion.
RICHARDSON, J.
WE CONCUR:
LUI, P. J.
GOORVITCH, J.
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